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Full text of "The present constitution, and the Protestant succession vindicated : in answer to a late book entituled, The hereditary right of the crown of England asserted, &c"

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n, and the 




: in answer 

to a late 




right of the 

crown of 





.1'.- r f 



O F T H E 

Crown of England 



History of the Succession 
fince the Conquest clear d; 


True Englijh Constitution vindicated 



O F 

Dr. Higdens View and Defence. 


Some Mistakes alfo of our Common Historians 

are redify'd ; and feveral Particulars relating to the Succeflion, and 
to the Title of the Houfe of Suffolk, are now firft publifh'd from 
Ancient Records and Original MSS i together with an Authentick 
Copy of King Henry VIII.'s Will. 

By a Gentleman. 

llle^ ut opss fra&di Teucrum^ ({y fortuna recejfit^ 
Res Agamemnonias, m^rkiaque arma Jecutm^ 
Fas omne abmmpit. Virg. &n. ^. 


Printed by G. James^ for Richard Smith, at Bifhop 
Beveridge\ Head in Fater-NofieuRow. M DCC XII I. 



TH E Do5irine of Allegiance due to PoffeJJion, when firft fub- 
lidly taught^ and by whom refuted pag. t 

Dr. HigdenV three Reafons anfwer'd^ by which he would clear that 
Dodrine from rnahng Allegiafice due to Cromwell 5, 

H/x Do6irine deflroyy the Hereditary Monarchy 1 o 

The Monarchy of England froifd to be Hereditary ^ by Pre- 
fcription 11 

By expreff Laws t^ 

The Dotior's Arguments from the Authority of Zjiwyers and Prece- 
dents briefly anfwerd 1 6 
His Argument from the Common Laws confiderd 19 
He mijiakes the true State of the 2i{eflion 21 
The People's Submijfion to fuch Kings as were not Heirs to the 
Crown by immediate Vefcent^ is no Argument that Poffejfion gi'ves 
Right to Allegiance ibid. 
Whether the Kings of England had not anciently a Power of difpo- 
fing of the Crown by Tejlament 22' 
However, the Confent and CeJJion of the Rightful Heirs were cer- 
tainly fujficient to make fuch Kings Rightful 23I 
Submijjion might be pafd them on one of thofe Accounts 24 
William the Conqueror, in both thofe Regards, a Lawful King 


Edward the Conit^or' s Nomination of him for hisSuccefforjuJlified 26 

The Right fljewn to have been in Edward the Confeflbr 3 rj 

William Rufus alfopronfd to ha've been a Lawful King 5 ji 

The fame Jhew'd of Henry I. 37 

His Ufage of his Brother Robert not fo cruel as many Hiftories re- 

prefent it 39 

King Stephen the firfl Ufurper 42; 

No Footfteps of the Doctors Principle in that Reign 451 

Which was the mofi turbulent of any 45 

Such as adherd to him, did it not on the Do^orV Principle 46 

The Earl of Glocefter own'd himfelf bound in Confcience to the 

Right of the Emprefs Maud 47 

T.y King of Scotland fufferd much in Defence of her Right 49 

The Beha'uiour of the Clergy in that Reign 50 

They made aDiJiindion between King Stephen, and a King de 

Jure 52 

What Influence the Pope's pretended Power of Setting up Kings 

then had 53 

Our Hijlorians date Stephen'/ Right from his Agreetnent with 

Henry ^ 54 

Henry II. a Rightful King 5 j 

Jt is moft pobable, his Mother had refign'd her Right to him 5<5 

The Dodors Argument, from a Paffage in our Homilies^ an- 

fwerd 60 

A Defence of Bijhop Merks againji his Reflexions 6a 

[a] _ No 


JVb n£ed ofpro'ving there were Non-jurors under Kings deFadlo 69 
That ought to be prefnm*d, till the contrary is provd 70 

hflances of fe-veral^ that ought to be reputed fuch ibid. 

The Clergy took no Oaths of Fealty before the Reformation 71 

William tbe Conqueror not fo generally [worn to, as the Dotm 
pretends 72 

Se'veral of the Nobility andr Gentry left the Kingdom, rather than 
fubmit to him 73 

Several of them were in Arms againft Henry IV. on the fame Ac- 
count ibid. 

The Doctors Miftaie in ajferting, that all the right Heirs of the 
Crown fubmitted to Henry IV. 74 

Owen Glendor made War upon him for the Sake of the Right 
Heir jj 

A Miflake of our common Hijlories concerning that Wcilh Gentle- 
man, rebuff d 80 

The Percies alfo efpous'd the Quarrel $f the Right Heir againjl 
Henry IV. 81' 

A Vindication of them againfi the Do^or, out of a MS. Copy of 
HardingV Chronicle, Part of it never printed ibid. 

It was a prevailing Principle in that Age, that A6iions done thro^ 
Fear of Death, were excufable, if not lawful 88 

Breach of Original Contract, chared by the Percies on Heary IV, 
may be juflty chared on fuch Elective Kings go 

Archbifbop Scroop joind with the Earl of Northumberland againfi 
Henry IV, in Favour of the Right Heir 91 

Thefe great Men's Rifing againfi him, was not Rebellion a?id Per^ 
juty, but Loyalty ' 92 

The Bleffings attending the Doctor's Conftitution in that Reign 93 

A Reflexion of Sir Walter Raleigh'/ to the fame Purpofe 94 

The People's Submi[fion to Henry V, not fo univerfal as the Doiior 
makes it 9j 

Richard I>uke of YorkV Claim againfi Henry VI. approved in 
Parliament 96 

Edward IV. and his Parliament not blamable for calling Henry V, 
and Henry VI, Kings in Deed, and not of Right, notwith- 
flanding their Oaths, and his ibid. 

Though the Oaths of Richard Duke of York, and his Son, to Hen- 
ry VI, had tfd them from claiming^ yet this did not tye their 
Subjects 99 

A King cannot refign without the Confent of the Three Eflates 100 

This Cafe is a mofi manifeft Declaration in Favour of Right againfi 
Pojfejjion io2| 

Kings de Fafto always fortiffd their Titles by the Pope's Approba- 
tion 1 04 

The Dolors Argument for Allegiance to fuch Kings from the pre- 
tended Allowance of the Kings de Jure themfehes, confidcid 107 

This Allowance cannot be inferred from the Difcontinuance of Pro- 
ceffes, &c. on the Demife of Kings de Fa6lo 108 

Nor from the Validity of their Grants, Licenfes, &c. which were 
not fo numerous as the Do^or pretends no 

BagotV Cafe at large 1 1 1 

Mifreprefented by the Do^or 1 14 



Hii Inferences Wrongs both from the Plea of BagotV Co««/^/ ii6 

Jnd from the Judgment given in Bagot'x Favour 1 1 8 

Which neither necejfarily imply'd the Validity of Henry Vll.'j 

Grants ibid. 

Nor did the Validity of that King's Grants imply the Allowance of 
his Authority 119 

The Points of Law contained in the Plea of Bagot'x Counfel^ con- 
fiderd 121 

Taken in the Do6ior\ Senfe, they prove too ihuch ibid. 

In their natural Senfe, they prove too little 124 

Sir Ralph GreyV Cafe confider'd^ tho' overlooFd by the Doctor 127 

This Cafe faljly reported in the Year-Books, as well as in Holinf- 
head 129 

He was condemned, not in a Court of Common Law^ but in a Court 
Martial 130 

Kings de Jure have no where allowed the Legiflative Authority of 
their Predeceffors dt ¥i£t6 132 

All the A6ls of the Three Henries Tifsre held to be defective in Point 
of Authority, in the Reign of Edward IV. 134 

Some of them funk of thetnfelves, upon his denying to confirm them 


Others were declared void 140 

Others confirmed, which the LaWs of no Kightfid King ever weie^ 
for want of Authority in the King 144 

That of the 13 Car. 2. was confirfn'd for want of Authority, not 
in the King, but in the Convention calPd without the King 145 

Probably viany more of the Henries Laws were confirmed, than what 
the Doilor jnentions ibid. 

That fome more were confirm'' d, is certain 147 

That feveral of them, which do not appear to halie been confirmed, 
have yet the Fwce of Laws, is no Proof of the Authority of thofe 
that made them 148 

A farther Argument, that the Validity of Laws does not always de- 
pend upon the Authority of the firft Makers of them 150 

Sojne of the Aifs of the Three Henries tnay be allowed to have been 
only voidable on Edward IV.V Accejf/ion to the Crown 153 

Others of them were actually void 1 5 j 

Tet it was thought advifable alfo to declare them void ibid. 

Richard III.V Laws no Argument of his Authority, though not an- 
nuWd by Henry VII. 157 

Why they were not annulld then, nor fince 158 

Henry VII. Was Lawful King only in Right of his Queen 159 
Not as defended from John of Gaunt .160 

The Stat, of 1 H. 7. did not reftore the Title of the tioufe of Lan- 
cafter i6f 

The Argument from the Stat, of 11 H. 7. confide/ d 1 63' 

That Statute, in the 7nodern Senfe of it, was needlefs, if Alle- 
giance had been due to PoffeJJion by the Common Juiw ibid. 

It could not be intended for the Benefit of Kings de Facto and their 
Adherents 164 

Henry VII. himfelf having attainted fuch, and their Attainders be- 
ing unrepealed when this A6t pajjed, 165 

The Doctor's Attainders by Parliaments ex poft h^o, unintelligible ib. 



Henry VII. dejtgn'd thereby only the Intereji and Safety of his oven 

Adherents l66 

He could propofe no Benefit from it to himfelf hnt as ZC/»^deJure ib. 
JVor are the Words of the Aci applicable to a King de Fafto 169 

They have vever yet been deter mind to that Senfe by any Judgntent of 

Court 1 70 

The Dolor's Argument from the Opinion of great Lawyers on this 

Statute^ anfwerd \j\ 

The Cafe of the Lady Jaoe Grey confder'd 172 

The Judges Opinion on that Cafe, that the Broad Seal of an Ufur- 

per was of no Authority, does not depend on that Lady's ha- 
■-, ving been in Pojffefjton of the Throne 175 

^/ her oxvn Council affert, fie was in full Poffeflion 5 and ^leen 
''-.Mary herfelffeems to own it ibid. 

2>ior are the Do&or's Ohfervations from Hijiory againji her PoJfeJJion, 

fo inconteflable, as he imagines 175 

On this Occafion he has plainly alter d the State of the ^uejlion Ij6 
Into what a narrow Compafs he reduces the Services to be hoped 

from this A^ 1 77 

Which afier all, was virtually repeal' d by King William 178 

The Lord Chief Juftice Hale'/ Judgment in the Cafe of the Lady 

^ Jane Grey 179 

What Authority is to be attributed to the Opinion of Henry Vill.'x 

Judges, that the Crown takes away all Defefts and Stops of 

Blood 180 

That Maxim not univerfally true ibid. 

A3s done in Contempt of it are approvd and commended in our 

Laws 182 

The Right of the Legiflatnre to limit the Succe^on, is no Argument 

that Allegiance is due to Kings de Fafto 1 84 

'None of their A^s of Limitation have ever yet effe&ually excluded 

the next Heir by Proximity of Blood jgj 

Their Entails of the Crown upon the Hoiife ^/Lancaftcr did not keep 

out the Houfe of York ibid. 

The Limitation of the Crown by Henry VWl.'s Will^ inpurfuance of 

an AH of Parliament, confiderd \ 85 

His Will was admitted, executed, and publijhed, as a legal and good 

Will ibid. 

Dr. Higden has not produced any ObjeSion of Weight enough td 

render its Validity quefiionable 194 

His Obje^ions anfwerd 195 

A Cenfure of the Third Volume of the Complete Hiftory of England 

Charles Brandon, £)«^e 0/ Suffolk, vindicated from the Charge of 

Polygamy ^ 201 

Thi( Calumny, after it had been confuted, reviv'd in the Bifjop of 

SarumV Hiftory of the Reformation 202 

The principal Nobility now living, that have the Hdnour to be de- 
fended from that Duke, and the French ^leen 205 
The Houfe of Suffolk vindicated from thk Afperfion out of a MS. of 

Mr. John Hales " ibid. 

What induced Henry VHI. to exclude the Scotch Line 208 

Though ^ueen Elizabeth made it High Treafon to deny this Power of 

Limitation in her Life- time, yet in Oppojiiionto //, Jhe difcouraged 



the Suffolk TitUy and madeWayfor the Famljt of Scotland to the 
Throne 209* 

The Do&or's Argument from the Sncceffion of^een Mary and §lneen 
Elizabeth confiderd 212 

// is a Mijiakcy that thefe ^neens had no other Title, than the 
35 H. 8. 219 

And that they could not he both Legitintate ibid. 

The DoSfor'f- Authorities of, om heft modern Lawyers conftderd 216 
My Lord Chancellor Bacon is againji him in feveral of his Wri~ 
tings 21 y 

l^ir Edward Coke n>as not always for him 218 

The LavQs did not ceaft under Cromwell 320 

My Lord Chief Jufiice Hale is alfo clearly againji the DoBor^ in 
his MS. Hiftory of the Pleas of the Crown 221 

The Exfradl which proves thk, is faithful j^ and fupported by his other 
Writings 225 

Our Laws themfelves are againji the DoBor's C<fnJlifution 226 

•^0 are our ancient Lawyers, particularly Sir John Fortefcue, 2^2,235 
And Dr. Morton, afterwards Archbifiop of Canterbury, Lord 
Chancellor, and Cardinal 23 j 

The Judges, &c. upon the Tryal of the Regictdcs declare, that 
Charles l\. during his Exile, Tea's King both de Fado and de 
Jure, 235 

The Doctors Argument from the Scriptures confiderd 337 

This w,fs ShiraeiV and Hulhai'j Plea fir Abfalom ibid. 

The Jews Submijjion to the Midianiteg, Moabites, and other Con- 
querors, does no Service to the Dolors Conjlitution 238 
Nor our SaviourV Refolution cf the Cafe about paying Tribute to Cx-- 
far 241 
Which, in the Do&ors Senfe, proves Allegiance to have been due ta 
Cromwell 242 
7 he Do^or''s fruitlefs Attempts to evade thif Confequence 245 
The Parliament of Forty Two firfl fet this Do&rine of Allegiance to a 
King de Fadto in its true Light-^ and that upon the Stat, of 
II H. 7. 245 
With what Contempt King Charles I. treated their new Lxpofitioti 
of that Statute 24^ 
A like Declaration againji it by Mr. Solicitor, afterwards Lord 
Chancellor Finch 250 
Grotius'/ Expojition of that Text (R.ender to C£far, 8cc.) examin'd,.^ 
and other different Expo jit ions of it fet down, which the Do^or 
has not refuted 251 
Our Saviour does not here require the Jews to do more for Csfar, than 
was con/ijlent with the common Principles of Right and Jujiice 253 
The Fa^ on which Grotius'x Argument is founded^ fccms plainly to 
be mijlaken 254 
Grotius himfelfwas not always of this Opinion 255 
Which would have been fo fatal to the Roman Empire, that if it had 
been Chrifiian, that alone would have engag'd the Romans to ex-r 
tirpate Chriftianity 256 
If it be a Chrijiian Law, it is fuch as never had Authority in any 
Chrijlian Nation 258 
St. Ambrofe, and the Chriftians of that Time, did not obferve it 
with regard to Maximus, who was Emperor de Fafto 259 

[b] Whofe 

C O N T E N T {?. 

W^ofe Larvf and Edi&s were aUdeclard Null by Theodofius, ait the 
Laws of Vfurpers us'd to be by the Chrifiian Emperors 26 1 

Whether^ ifvpefuppofe the Tribute- Money to have been coin'd by th 
Jews, that nxmld not make our Saviour'; Argument more intel- 
ligible ibid. 

Confiderations that feem to favour this Con jcB tire 162 

Which is farther countenanc'd by comparing it with that, which af- 
ferts the Konans thcmfehet to have coin'd /A// Tribute-Money 

Another Conjecture^ viz. that the Infcription on the Tribute-Money 
was Judsa Capta, conjider'd ibid. 

The Authority of the LeX Regia vindicated againjl the Doifor i6j 

The Title of Tiberius p^ov'^d from it 268 

And. from the Roman Hijioriant 269 

The Romans Rightful Governors <?/ Judaea by the SubmiJJidn of the 
Jews 270 

However forcible that Submijjion is pretended to have been 272 

The Judgment of two great Hiflorians^ for the Validity of Agree' 
ments fuhniitted to by Force 275 

The Jews fubmitted by Force to the Babylonians, and yet are con- 
demn d for difobeyitig that Government ibjdi 

The Conclujioh 274 

Contents oi the AP P E ND IX 

Numb. I. /I Vaffage out of Sir John FortefcueV Defence of the 
■^ Title of the Houfe of Lancafkr pag. i 

Numb. tl. Proceedings of Richard Duke of YorliV Claim againfi 
Henry VI, &c. m 

Numb. III. The Pope' J- Confirmatioh of Henfy VIII.V Marriage, 
and of his Title xvi 

Numb. IV. The AU for legitimating the 'Beaufort Family xvii 

Numb. V. A Letter from ^ueen Jane'/ Privy Council to the She- 
r/f, &c. <>/Kent xviif 

Namb. VL APaffage out of the Journal of the Houfe of Lords, con- 
taining the Declaration of Remy Vlll.'s Death^ and the reading 
of a great Part of his Will to that Houfe ^ix 

Numb. VII. Mr. J. Hales'/ Declaration of the Succejjion of the 
Crown XX 

Numb. VIII. An Authentick Gpy ofUtmy VIII. V Will xlii 

Numb. IX. A Pafjfage out of my Lord Chancellor EWcfracxe'r Speech 
in the Exchequer-Chamber, touching the Poftnati \\^ 

Sir Francis Bacon'/ Argument in the fame Cafe -^ with fome Refle- 
xions upon both ibid. 
The End of the Contents. 

Tilt READ E R is defrd to correB the folhrfing E R R A T' A /» r^f I N X R Q- 
D U C T 1 O N, with 7f hat others be may p/d in the Book. 

P A G. 2. Marg. r. i>/. 2. c. i. P. 4, Marg. r. 1 2 Gtr, 2. c. 12. P. 6. I. 7. r. Hen-. 

^ ry IV. P. b. 1. Hit. for can t^jaie, r. « mcejfury to make. P. 9. Marg. n. i. r. Def. 
p. 1 37, 138. P. 1 1. Marg. {A and (/-) refcrr to Rjchard Ri(h, 1. 10. And Dej. p.. «.* 
refern to He affirms, 1. 1 2. P. 1 3. Marg. dele vide. 


c> :t;iif't3 



H E firft Time that the Duty of 
Paying Allegiance to Powers in 
Pofleffion began to be taught 
publickly in this Kingdom, was 
during the Ufurpations, which 
fucceeded the Death of King 
Charles I. Some Expreffions to 
that Purpofe had cafualiy dropp'd 
from Lawyers, without examining 
the Queftion. In all former Revolutions, the Princes 
who got Pofleflion of the Crown, claim'd it by fome 
Right, and never infifted on Poffeffion, as Right. But , _j^^ 
the Rumf'Farliament^ and Cromwell^ and the following White ^ p^- 
Ufurpers, having no tolerable Pretence to any Claim of^^d^a^ 
Right, their Friends were reduced to a Keceffity of Baxter, Ea- 
pleading Tojjefion, as a Right to Obedience ; and feveral Hobbe?""' 
Books v.ere then publifh'd by {a) Papifts, Fanaticks, and .m^^^ 
Deifts, to enforce and prove it. But this Principle was autim c^n-' 
then generally rejected, by all the Members of the Church pjfpifs''' 
of England, and by many Presbyterians^ who maintain'd, TheFindka- 
that Allegiance was due to the rightful King, who was Oathif^k- 
hot in Poffeffion ; and feveral (b) Authors of both Com- j'^»",i^^ri- 
munions wrote againft, and refuted the Title of PofTef- "EaTon, S- 

flOn. derfon,Pryn,, 

After, the Reftoration, theA(Ss, Orders, and Judicial dou, Bram- 
Proceedings of the Governments preceding, were all null Lnf Ten-^' 
and void, except fuch as were authorized by a new Law : "'.'o"» '^"j 
And it was declared by an ("c) Aft of Parliament, That ur! agJnji 
all the fa id Powers before in Poffeffion, were rebellious^ ^°^^"' ''"'^ 

• It • 1 - 1 I n\r ' I n 1 1 . P the UnTVerfity 

vptckedy traiterous^ abominable VJiirpations^ detejted by this of Oxford, »« 
^refent Parliament : And the Reafon follows immediately, oxoSr 
As o^fojite in the highefi Degree to His Sacred Majeftys moft 
ju(i and undoubted Right, to whom and to His Heirs and law- ch. 12. 

B ful 


ful Succejfors, the Imperial Crown of the Realms o/" England, 
Scotland, and Ireland, xvith their and every of their Domi- 
nions and Territories^ do of Right appertain ; and as violating 
the jitft Rights and Privileges of Parliament. Here the Con- 
ftitution was again refettled on its ancient Foundation ; 
not on Poffejfion^ which all the Ufurpers had ; but upon 
the undoubted Right of the Lawful Heir, who had been 
out of Pojjejfion.^ and of his Heirs and lawful Succejforsy to 
whom it is here declared, that the faid Dominions do of 
Right appertain. And agreeably to this Conftitution, in 
that Reign it was the conftant Doftrine of Lawyers and 
Divines, that Allegiance was not due to all Powers in 
Pojfejfion^jr u 

The Revolution that happen'd after, was begun, car^ 
ry'd on, ended, and juftified on thefe Grounds, That Al- 
legiance was not due to all Kings in Pofleffion : That 
King James was lawfully depriv'd : That King William 

C'^)^''i< and Queen Mary were lawfully put into Poffejfwn (d). Biit 
fef.2. C.2.' thefe Poiitions did not fuit with the Principles of many 
Lawyers and Divines, who had conftantly maintain'd, 
that the Depofition of a lawful King was abfolutely un- 
lawful by the Law of God, and the Laws of this King- 
dom : Therefore, to juftify the Tranflation of their Al- 
legiance, the former Opinion, that feem'd buried at the 
Reftoration, was reviv'd ; viz. That Allegiance xcas due to 
all Powers in PoJfeJ/ion; and many eminent Members of 
the Church of England receiv'd it, as confiftent with the 
Doctrine of Non-Refiftance : Divers Treatifes were then 
publifh'd by Divines and Lawyers, to defend it; of thefe 
the moft celebrated were the Compofitions of great Wri- 

(e) Stil- ters renowned in Controverfy (e). The Vnreafinahlenefs 

*"f/rsher- of a new Separation.^ and the (f) Cafe of Allegiance due to So- 

lock. qjereign Powers. The Inftances of Hiftory and Parliament 

Records ufed in the firft, were enquired into by an exadt 

(g) Brady, and faithful (g) Hiftorian, and unanfwerably refuted : 
The Arguments of the lad from Scripture and Reafon, 
the Do6trine of the Church, and the Laws of the King- 
dom, were refuted likewife by feveral Writers ; and no 
Reply of Moment being made, that Controverfy feem'd 
to be buried again ; but of late it hath had a fecond Re- 

The Reverend Doftor Higden thought fit, after ma- 
ny Years of Satisfaction, to examine the Difpute again ; 



and having weigh'd in his Judgment the Arguments 
againft Poflbffion, found them to be light in the Balance; 
and was convinc'd, that Allegiance was due to Kings in 
Fa6t, by Law Divine and Humane : And to convince o- 
thers, he drew A View of the Englifli Confiitution^ and 
fome time after, a Remew to defend it againft feveral An- 
fwerSj in which his new Scheme had been thoroughly re- 
futed. It hath happened in this View^ and the Defence 
of it, as it ufually does, when the Eye is fix'd attentive- 
ly on one Object ; that fingle Objed is alone regarded 
and confider'd, and the many different Objeds in the 
fame View, are either not feen at all, or not diftindly. 
It will appear probable at leaft, to every one who reads 
the Doctor's two Treatifes with Attention, that when 
he look'd into Englijh Law and Hiftory, he had always 
his Opinion diredtly in his Eye ; that he obferv'd what 
was fit for his Purpofe; and what was not, he overlook'd, 
or faw it through a bad Perfpedive. Thus having col- 
lected all the Materials he could find in Law and Hifto- 
ry, favourable to Poffeffion, he rounded, and fmooth'd, 
and ftiap'd them, by his own Gloftes, to his own Opinion, 
which he prefented to the World in Print, and call'd it 
A Vievp of the Engliih Conflitution. 

B u T it appears not^ that the Dodtor, with all his Dili- 
gence, hath found out any material Proof of his Confti- 
tution, which his Predecefilors in this Controverfy had 
omitted. He hath himfelf given us a (h) Summary of WrefAce 
his Proofs, which had been all urg'd and anfwer'd be- jenc" ^' 
fore, by the Writers on this Subjedt, after the Revolu- 
tion ; and moft of them had been pleaded by the Wri- 
ters for Pofleffion before the Reftoration. 

The Dodor indeed endeavours to diftinguifti him* 
felf from the Advocates of thofe Ufurpers, and particu- 
larly Cromwell^ who had been often objected by his Ad- 
verfaries ; And (ij once for all he diffatches Oliver by three (i) Befeme; 
killing Reafons, which it may be fit here to examine. P' ^°^' ^°7* 

The firft is. That Oliver had not the Legijlathe Au- 
thority of the Kingdom^ nor vcas ever acknowledgd by our 
Kings to ham had it ; and therefore could not ha've the fove- 
reign Authority of the Kingdoms. He actually exercised all 
fovereign Power, Legiflative, and Executive. By the 
Inftrument of Government, (k) The fupreme Legtjlati've ^^\l]J^^' 
Authority of the Kingdom was in his Jingle Perfin^ and the r<w,p.4i4. 


2. (. 12. 


People in Parliament ; but the Adminijiration of it was left 
to the Lord Prote&or^ and his Council^ nominated by him. 
By his own Authority he made Scotland one Common* 
wealth with £rz^/ant/ ; and he pa (Ted five Bills in his fe- 
cond Parliament : But his Legi/lative Power was never ac- 
knowledged by our Kings. His pretended Adts, on the con- 
trary, were null after the Reftoration. For what Rea- 
(0 I Ctr. fon? {/) The Law hath plainly declared it ; becaufe the 
Power that made thofe Ads was Vfurpation^ oppo/ite to 
the undoubted Right of the King and his lawful Heirs, 
and the jufl; Rights of Parliament. Will any one affirm, 
that the principal Reafon of the Nullity of OUz<ers A6ts 
is none ? or that they were null for want of a lawful 
Parliament, and not for want of a lawful King ? Will 
any one fay, the Law affirms this ? On the contrary, the 
Law is plainly declarative of the true Englifli Confiitution^ 
that to the Authority of Law is requir'd a lawful King, 
and a lawful Parliament ; and the Want of the firft is the 
chief Caufe of the Nullity, becaufe without the firft the 
fecond cannot have Exiftence. 

The fecond Reafon is, That Oliver, who had not the 
Regal Title and Office^ could not have the Legi/lative Authority 
in this Monarchy .^ in which^ by our Conflitution^ a Law cannot 
he made without a King or Queen ; and therefore all the A8s 
of Oliver Junk of themfehes^ as Nullities ab Origine. As 
to the Name King, Oliver^ when his Parliament offer'd 
it, denied to take it ; but he took and executed the Of- 
fice. The Name of King or Monarch denotes Sovereign- 
ty vefted in a fingle Perfon, which Oliver really had, and 
was therefore really that, which thofe Words do fignify ; 
for he adually exercis'd Sovereignty in this Nation in a 
higher Degree, than did ever any of our Monarchs fince 
the Conqueror. But is Allegiance due to a Sound, or 
Syllable ? Is there any Law, that nulls the A6ts of Kings, 
if they change their Style ? If the King of England^ 
whofe Crown is Imperial, fhould aflume the Style of Em- 
peror, would all his Laws be null ? Would he thereby 
forfeit his Crown Imperial ? So he would, if he loft 
his Authority. Majefiy was once as unknown to our 
Conftitution, zsProte&or. The Kings o^ England were 
ftyled Lords of Ireland ; yet as Lord s, their Ads were 
valid ; and when Henry VIII. took the Title of King, 
unknown to the Conftitution oi Ireland^ were his Laws 



afterward Nu'^ ah Origim ? The Do6tor is too judicious t6 
infift on this Pretence for nulling the Afts of Olher : If 
he had taken the Style of King, as he adually exercis'd 
the Office, his Authority and Right would have been 
ftil] the fame: The Ufurping of a Word would not have 
made Legal all his other Ufurpations ; and it is morally 
certain, that if he had taken the Style of King, the Na- 
tion would not have acknowledge! his Right, to make 
Laws ; and that after the Reftoration, they would have 
funk of themfelves, as the Laws of an Ufurper. 

The third Reafon is. That thofe only haue been dc*^ 
knovpled^ d for Kings for the Time beings who have been placed 
in the Throne by the States of the Realm^ and recognizd by 
Parliament ; whereas Oliver had not the Confent of the Three 
Efiates ; Two of the Three Efiates^ the Lords Spiritual and 
Temporal^ had hem long before laid ajide ; and it was no bet', 
ter than a Mock'Reprefentation of the Third Ejiate^ that made, 
him ProteSior. To this it may be anfwer'd, ;? 

Firft^ as before, That Olivers Laws were Null, not-. 
becaufe he was not advanc'd and recogniz'd by the States,: 
but chiefly, becaufe his Uf jrpation was oppofite to the 
undoubted Right of the Lawful Heir. The Do6tor*S; 
three Reafons are but one in Reality, (Title excepted) 
and one Reply is fufficient to confute them. But, 

Secondly^ There is no Law which declares, that Kings 
for the Time biding muft be neceflarily plac'd in the Throne^ 
and recognizd by Parliament. The Eleventh of Henry VIL 
makes no Mention of that Neceffity ; but fuppofes only 
in general, that Allegiance is due to the King for the 
Time being: The Words themfelves imply only his 
Exiftence, not the Moral Caufes, or EfFefts of it. And 
the Dodfor hath cited no Authority of I^w, nor pro- 
duced any Reafon to juftify or fupport his Afiertion : On 
the contrary 'tis notorious, that the Kings of England 
have Regal Authority, before a Parliament is called: 
Their Authority therefore is not the Produ6f or Effed of 

Thirdly^ Moft of the Doctor's Kings in Fadf were 
Kings in being for fome time, before the Recognition of 
the Three Eftates : It cannot be provM, That the Three 
Eftates did conflitute a Parliament, before the Middle 
or End of the Reign of Henry 111. Henry V. Henry VL 
Richardlll, Henry \l[. were Kings in being, and exercis'd 

C Regal 


Reofal Authority, before their Parliaments met: Thiis 
Kine of the Dodor's Kings de Fa&o were not f>lac^d in the 
Throne by the States. Edward 111. was fet up by an AC- 
fembly, call'd and pack'd by an infamous Adulterefs, 
when the King her Husband was in Prifon. Richardll. 
was alio in Prifon, when the Parliament, call'd in his 
Name, depos'd him, and fet up Henry I. 'Tis well 
known, who is Caput.^ Principmm.j ^ Finis Parliamenti : 
And the Dodor may pleafe to refolve us, whether an 
Affembly is free, when the Head is imprifon'd? and 
whether perfect Freedom is not neceflary to a lawful 
Parliament ? 

Fourthly., Since A6ts done without a Lawful Power, are 
Null ab Crigitic ; the Doctor muft allow, as he does, that 
the Three fiftates have a Lawful Power to place a King on 
the Throne.^ as well ds to recognize him, when he is plac'd ; 
For if they have no fuch Power, their Placing a King is 
nothing ; and cannot give Authority, which they have 
riot. The Doctor underftands not this of Placing Kings 
on the Throne.^ who have an Hereditary Right ; but of 
Kirigs, who have it not : And then the neceflary Con- 
ftquence is, that the States have a Lawful Power of de- 
pofing Rightful Kings, to fet up Kings de Fa&o ; for they 
cannot place the one, without difplacing the other. Thus 
oneParliartient fet up Edrcard III. by depofing his Fa- 
ther; and another, Henrj^ IV. by depofing Richard. 
Thefe two Powers have been always join'd in FafI:, 
Dethroning, and Advancing ; and if the Doctor will main- 
tain, that the Three Fiftates have a Power to depofe 
Lawful Kings, he may affirm it frankly ; and he will 
find juft as many Ads and Precedents for his Depofitions, 
as for his Promotions : But if he will maintain, that the 
States have a Lawful Power to place a King on the Throne; 
but not to depofe a Lawful King ; he will maintain (with 
Submiffion be it faid) a manifeft Contradidion : For if 
the Depofition of a Lawful King, for want of Moral 
Power, is Unlawful and Null ; he remains, as he was, a 
Lawful King, endu*d with lawful Authority ; but he 
hath no Authority, and is not Lawful, if another King 
is Lawfully plac'd on the Throne by the States, and in- 
vcfted with Lawful Authority : To create one King, is to 
dcftroy the other: Therefore they who have not a 
Power of Deftroying, have none oi Creating; and if 



they will create, the Being they produce is Morally Nd> 
thing. In the Dodlor's Opinion, Charles II. vvhen dif- tefehce^ p. 
poflefs'd, was AftualJy and Lawfully King, becaufe there *''^' 
was no King in Fojfejfion againji him. Does he think King 
Charles would have quitted the Regal Title, if Olizier had 
afTum'd it ? Be it fo; but fuppofe the States conven'd had 
recogniz'd 0//W, as King; in that Inftant, in the Dodor s 
Opinion, he would have had Regal Authority, and "^ 
King Charles would hav€ been deprived of it. ; But how 
could he have loft it in an Inftant ? By the States Au-* 
thority of depoling him, of advancing and recognizing 
OliiJer. Let any one, let the Dodtor himfelf vouchfafe 
to confider well the Cafe, and give a tolerable Refolu- 
tion of it. 'Tis this ; One Week the States depofe a Law- 
ful King; the next they place Another on the Throne ; 
the third they recognize him : The Difficulty is, how 
have the fame States a Lawful Power to recognize and 
promote, if they have none to depofe ? 'Tis in vain to 
diftinguilli without a Difference ; it feems abfurd to make 
the fame Power Null when it pulls down, and, when it 
fets up. Valid. Refiftance, Depofition, Promotion, Re- 
cognition begin, advance, and tinifh Revolutions. Con- 
fent of the States and People legitimate All, or Nothing. 
The proper Way therefore of refolving Difficulties, is 
to begin with thefirftA<5ls; to examine whether Refi- 
ftance and Depofition are lawful ; then to confider, whe* 
ther Subjeits (fuch are the Three Eftates) have a Moral 
Power, by their own Confent, to dilcharge tliemfelves 
from their Allegiance to one King, and to give Regal 
Authority to another : If their Conlent abfolves them, 
they have a Lawful Power of Depofing ; if not, their 
Confent is unlawful, and void; and hath no Moral Ope- 
Tation : It can neither deprive one King of Regal Au- 
thority, nor conferr it on another. 

Fifthly.^ Since the Law hath declared, (a) That neither (4)13 Cm, 
'hoth.^ Twr either of the Houfes of , Parliament^ have a Legifla- ^' '^''' 
timPower^ without the King; it is hard to underftand, 
how the Three Eftates can give a Legiflative Authority, 
which they have not, to a King, who hath it not ; and 
that their Confent, which is no Law, can make a Law- 
giver, and become a Law to all the Subjeds, by laying 
the Obligation of Allegiance on them. Hitherto Men 
shave been perfuatled, that the Effect can have no more 



power, than the Caufe ; and that none can give that, 
which he hath not. 

Sixthly^ Whereas Sovereignty is deny'd to Olker^ be- 
caufe he hid not the Confent of the Three Eftates of the 
Realm; this may raife another Difficulty : For if one 
of the Eftates is excluded, (as in a Neighbouring King- 
dom) then it feems, in the Doctor's Opinion, that a King 
fo made hath in that Kingdom no Right to Sovereign- 
ty, and is not truly a King for the Time being: The Con- 
ftitution, as to the Three Eftates, in both Kingdoms, 
was the fame ; and it is hard to find a Reafon, why if 
one Eftate is lawfully excluded, fo may not another; 
the Temporal, as the Spiritual Peers; for both have 
the fame Right by the Con ft itution; and if Two of the 
Three may be excluded, fo a Part of the Third, and i^o 
another Part, till the Three Eftates are brought to a 
Rump, which may be alfo leften'd, and at length whol- 
ly excluded ; and fo this Tail of a DiftinSion, by 
plucking out all the Hairs, will be reduced to nothing. 

Seventhly^ Tho' OHver had not the Confent of the 
Three Eftates Lawfully aflembled, yet all the Eftates, and 
the whole Body of the Kingdom liv'd quietly and peace- 
ably under him ; paid him Taxes ; received Juftice and 
Dug^daie, Pfotedion from him. He affirmed in a Speech to his 
firft Parliament, That the Army, the City of London^ 
all the Judges, Sheriffs, and Juftices of Peace, the 
Grand Juries of feveral Counties, nay all the People of 
England had own'd him. The Majority of the Knights, 
Citizens, and Burgeffes, eledled by the People in his 
two Parliaments, fign'd a Recognition of him : His 
Eftabliftiment wasfo notorious, that all the Princes and 
States of Europe acknowledg'd him by Ambafladors. 
What follows ? If the main diffafive Body of the People 
of England own'd him; this is furely equivalent to any 
Recognition of the Body Reprefentative, or of the Three 
Eftates ; and the Whole being greater than a Part, the 
Authority of the Whole is greater in Proportion : The 
Confent of a v/hole People is of greater Value, than the 
Confent of a Senate. But it cannot be deny'd, that it 
conferrs at leaft as much Authority, according to the 
Law of Nature, and the Pradlice of Nations ; and the 
Law of England^ as is fa id, hath no where declared. That 
the Confent of Parliament can make Kings for the Time 

p. 428, 




heing^ or that in King-Making the Reprefenters have more 
Authority, than the Body reprefented. 

Eighthly^ The Doctor himfelf^ who excludes Oliver^ 
becaufe he had not the Confent of the Three Eftates, 
hath employed two Chapters in his Vlew^ and as many 
in his Defence^ to prove, that Subjection is due to Sove- 
reign Power in PofTeffioij, by our Saviour*s Decifion a- 
bout Tribute, and by the great End and Dejign of Go- 
Tjernment. He faith, that our Lord doth determine the Defence, pi 
Lawfulnefs of Subje&ion to the Roman Emperor^ for this one '^^' ^^^' 
Reajon ; namely, that he was in Foffejfion of the Government, 
Subjedion here muft fignify the whole Duty of a Subject 
to a Sovereign ; or it iignifies Nothing in this Difpute : 
And thus had Oliver a good Title to it ; for he coin'd 
Money, and was as much in Pofleffion of Sovereignty in 
Britain^ as in Rome Tiberius. And King Charles in Exile 
could not afford the Subje&s of England any of the Benefits of ^fftnce, p 
Government ; he could neither defend himjelf them^ nor his '^ ' 
Right to govern them. TheSubjedls therefore, according 
to the Dodor, were difcharg'd from their Allegiance to 
the King who could not, and were bound to pay it to 
the Protestor, who could, and did protect them. And 
if this is agreeable to the great End and Dejign of Govern- 
ment.^ it is agreeable to the Law of Nature. Suppofe 
then, that Allegiance was not due to Cromwell by the 
Law of England; it was due by the Will of God, Natu- 
ral and Reveal'd; by -the Command of Chri st, and 
the Laws of Nature; Laws fuperiour to the Law of 
England. If the Eternal Word hath fpoken and decided, 
vvhat Need of conlulting the Oracles of Englijh Law ? 
If the Law Eternal of all Government requires Alle- 
giance to PofTeflbrs, what Need of the Three Eftates to 
Authorize it ? Pofleffion alone fuffices ; and according 
to the Doctor, Allegiance was due to Cromwell.^ for this one 
Reafon y namely^ that he was in PojfeJ/ion of the Government, 

Thus it appears, that the Dodtor, againft his own 
Reafons, gives Cromwell a Right to Subjedion ; and it 
appears not, that his Three Reafons have difpatch^d him : 
His Ufurpation is ftill in full Force againft the Doctor's- 
Syftem, and evidently refutes it; for if it requires Al- 
legiance to Cromwell.^ to every one that gains Pofleffion ; 
it muft be confefled, that the Royalifts, who adher'd to 
the King againft Oliver^ were Rebels againft the Ordi- 

D nance 

Id I NT RO DUCT 10 N. 

nance of G o d, were TfanrgrefTors of the Law of Na- 
ture, and the Command of Christ; and that there 
never was, nor can be any Ufurpation ; for that implies 
Pofleflion, which, according to the Do6tor, is a Divine 
Right to Government. 

But the true State of the Controverfy between the 
Doftor and his Adverfaries, is, whether the Kingdom 
of England be, of Right, Hereditary? or, whether it be- 
longs, of Right, to every one, who gets PofiTeffion ? whe* 
thtr the Kingdom appertains to Lawful Heirs^ or A&ual Pop 
fejfors? The Diftindion between PofTefTors by Force^ 
and by Confent, hath no Ground in Fa(5t and Hirtory ; 
for all PoffefTors, not Hereditary, have been always fet 
tip by Force ; Confent of States and People hath follow- 
ed ; and it is morally impoffible, it (hould be otherwife : 
They who promote, aid, or gain by a Revolution, will 
confent willingly, and all others by Neceflity ; tho' in 
all Invafions of Sovereignty in England^ the Majority of 
the Nation hath been againft them ; yet the Lefs Party 
being ftronger by the Pofleflion of Power, hath forc'd 
the Cdnferit of the Greater. Confent therefore is the Ef- 
fect, not the Caufe of Pofleflion ; which cannot be mad^ 
Morally Good by the Evil it produces; nor ceafe to be 
Evil, as long as it is Invafion of the Undoubted Right of 
the Lawful Heir. The only Queftion therefore is, 
Whether Inheritance, or Pofleflion, is by the Conftitutiorl 
the true Right to the Englijh Monarchy ? 
f redact to 'Tjs true, the Dodtor acknowledges in plain Words, 
f Mff,p. . 'pi^gj. |.|^g Crown is Hereditary; and he denies it to be 
Eleftive : But what Kind of Inheritance can he mean 
confiftently with himfelf ? 

 '^ir^^ He aflerts, that the Inheritance may he limited by 
Parliament. This I will not difpute; but it follbws, 
that it is an Inheritance which may be taken from one, 
given to another, as often as the Parliament pleafes; 
which feems to be an Inheritance very diP".^rent from 
what is ufually underftood by Hereditary Monarchy; 
for it is truly Elective, fince the Parliament choofes, or 
may choofe the Succeffbr always : And it is more Elective 
here, than in other Eledtive Kingdoms ; for in all others 
the Elefted have a Right for Life ; in this a new one 
may be ele(5ted every Seflion. 



Secondly^ He maintains farther, That a King fhcd on hf. p. iof. 
the Throne by the States of the Realm^ is a True and Lawful 
King for the Time being. He requires not, that his King 
(hould be of the Royal Family; he plainly declares. 
That if Cromwell had had^ what he had not ^ the Confent or W- p- 1^4; 
the Three Eftates, he would have been^ what he'was not (a), a ("-«) Tht Do- 
King for the Time being, with LcgiOative Power. Thus Koref 
the Two Houfes, without a King, can choofe to this He- ^^^ jh»^<i* 
reditary Kingdom, and i^Uce on the Throne what Perfon D^colrih^lth 
they pleafe, Richard Rich., Oliver Cromwell.^ or one of any f^^j^J '^ 
other Family. thepUu- 

Thirdly, He affirms, (b) That either Queen Mary^ or TrnZ'^ni 
Queen Elizabeth, one or both, were Illegitimate, and yet '^'p"/' kim, 
had a Lawful Title. But (c) a Bajiard U of Blood to none mdeKichz.r^ 
in Law, Nullius Filius, dnd therefore cannot Inherit. Thus, ff^" ^' 
according to the Do6^or, this Hereditary Crown is the fence',"!' 5.^ 
Lawful Inheritance of thofe, who in Law have no Fa- qa SteWftiV. 
thcr, and therefore cannot Inherit. ' Co"ip. Hift. 

fourthly y He affirms farther, That it is our Saviour^s "'^i^',^' 
Doctrine, that Subjeftion is due to Pofleffion, and by FinchjffS 
the Law of Nature to Protedion : The Hereditary ^"J^ "^ ^^» 
Kingdom may therefore be Rightfully enjoy 'd by a '''* 
Commonwealth, a Rump, a Committee of Safety, or 
any other Power, that can get Pofleffion, and afford 
Protedion. Such is the Dodtor's Hereditary Crown ; 
if we colleft his fcatter'd Limitations, 'tis an Inheri- 
tance fubjeft to perpetual Eledion of a King and Par- 
liament, of the Two Houfes alone ; it may go to any 
Family, to no Heirs, to a Commonweakl^, to .any 
Power whatfoever. ;i' . ,' 

The Dodor, in his Views y could not avoid feeing evi- 
dent Proofs, that the Crown of England was Hereditary; 
therefore he acknowledged it Verbally, and deny'd it 
Really, as utterly deftrudlive to his Syftem of Poflef- 
fion. He may underftand Words as he pleafes : But all 
other Writers of all Nations, and the Generality of all 
Men, underftand by an Hereditary Crown, a Monarchy 
entaifd on one Family, and defcending fuccej/ively to the Li' 
need Htirs of it. Such are the Monarchies of France, 
Spain, Portugal, Sweden, Denmark, Hungary, and all o- 
ther Hereditary Dominions in the World ; fuch is the 
Englijh Monarchy, governed fucceffively above Nine 
Hundred Years by the fame Royal Family, which (faith 

a great 

iz INTRO DUC no N. 

StiUingflcet, a great Author) 1 belkve hath the Advantage, in Point of 
?ref Antiquity^ above any other in Europe, and^ as far as we knovp^ 

intheWorUL But if the moft ancient Hereditary Family 
in the World, hath not a true Right of Inheritance; if 
Prefcription of Nine Hundred Years is Nothing agaihft 
new Poflfeflbrs ; there is furely no Right to Government 
at all, nor any true Right of Inheritance, Publick or 
Private; but every thing is every Man's; and Right, 
Prefcription, Property, are Sounds without Significa* 

But there have been many Interruptions in this Li- 
. . .^ neal Succeflion ; fome of them were made by the Ceffion 
of the next Heir; others by Teftaments, which were 
thought to give a Lawful Right ; others by Conqueft ; 
and others by a falfe Pretence of Inheritance : But Right 
hath been always pretended ; and all notorious Violations 
of Right were condemn'd at the Time by all good Men, 
and rejedted after by the whole Nation; which hath al- 
ways reftor'd the Rightful Heirs, as foon as it could 
Ihake off the Yoke of Conquerors and Intruders. The 
 Species of Things is determined by their conftant Na- 
ture, not by accidental Changes, how frequent foever ; 
There have been many Changes in the Succeffion of 
England: Armies have let up Kings, who had no Right 
of Inheritance; Parliaments have confirmed them ; other 
Armies have dethroned ; other Parliaments have attaint- 
ed them ; and have declared the Entails of Parliaments 
Nun. There have been divers Temporary Conftitutions, 
if fo they may be call'd ; as the Conftitution of Con- 
queft, of Kings by Eledion, of Sovereignty in the Two 
Houfes, of a Commonwealth, and laftly, , of Prote- 
stors ; every Power in Poffeffion hath been the Confti- 
tution. But the Seeds of thefe Conftitutions fell upon a 
Rock ; forthwith they fprung up and flourilh'd ; but be- 
caufe they had not Root, they wither'd away ; none of 
them liv a fo long, as to gain the Title of Prefcription ; 
one or two grew up to Maturity, and died ; the reft pe- 
riOi'd in their Infancy. The Tree of Hereditary Right 
hath been feveral Times cut down to the Ground ; but 
the Stump of the Roots in the Earth hath grown up again, 
and hath reached unto Heaven. The Kingdom hath been 
fire, and the Nation hath been convinc'd, that the Hea- 
vens do rule. 


/ NTR DUCT 10 N. 13 

After, the Norman Conqueft, when the Govern- 
ment was quietly fettled under Bcmj I ; ul] the great 
^en of the Kingdom bound themfelves by Oath, to 
the Succeffioii of Maui his only Heir, to wham alone (as 
a good Hiftorian affirms) the Lawful Succejfion was due Maimsb. 
from her Grandfather^ Vncle^ and Father^ all Kings ; and from ^'fy^^^'^l' 
her Mothers Race for many Ages pojl. Bv her Right fuc- Cui roii Le-  
ceeded Henry II. her Son, from whom all th.e Royal Fa- CJ £ 
mily isdefcended; and He and all his SuccefTor?, for «fiio, ah 
above Five Hundred and Fifty Years, have enjoy 'd orcnio',iw! 
claim'd the Crown by Hereditary Right; even thofe who J^^js^l',"^'*^:^ 
had it not, did claim it; zsjohn^ tdenryW ^ Richard Wl^ncxcnviius 
Henry VII : which feems an evident Proof, that our Con- J'JJ^ '"''""'' 
ftitution is Inheritance. In Morality 'tis thought a good 
Proof of the Natural Diftind^ion .between Right and 
Wrong, that the Worfl: of Men pretend to Juftice, and 
would preferr Pvight, if by it they could compafs their 
Defires : There have been often Competitors in 'Poland:^ 
about the Right to the Kingdom ; All have claim'd by 
Eledion : The Conftitution of Poland is therefore Ele- 
ctive. The Kings of £n^/W, who had not Hereditary 
Right, have claim'd it for many Ages ; never was any 
King in England^ who would not have preferr'd Heredi- 
tary Right to all other Titles ; the Conftitution of Eng^ 
land is therefore Hereditary : But if Pofifeffion is Right; 
Birthright, and all other Rights are Songs and Fa- 

But if Prefcription of Nine Centuries, i^ the conti- 
nual Claim of Five Hundred and Fifty Years be nothing; 
what other Proof can be found more convincing ^ Thcfe 
Titles are indifputable in all other Hereditary Domi- 
nions ; and a hard Undertaking it is, to perfuade thofe, 
who will not be perfuaded. However, reafonable Men 
may bear it, if Attempt is made to convince them by a • 
Novel Law, and a Modern Conftitution. 

All Hereditary Titles, that were ever Receiv'd in 
thislfland, were united in the Perfon of Kingy^wej i. 
The Three Eftates in Parliartient acknowledging this to ^3 of P.e- 
be an inefiimabk^ and unfpeakable BleJJing^ with the Sacrt- "^^-'i^^^^ 
fice of their unfeigned and hearty Thanks to Almighty God, 
and upon the Knees of their Hearts^ with this and much 
.more Preamble, they humbly agnize the King's Indubi- 

E table 

f. I. 


table Right, and thelf own mofi conflant Faith and Obe- 
dience to his M^'jsfty^ and his Royal Progeny. 

They declare, That immediately on the Deceaje 9f 
Queen Elizabeth, the Imperial Crown of England did de- 
fiend to his Majeflj. 

They acknowledge, That his Right to the Crown 
is Inherent Birthright^ and Lawful Succejfion^ as being Line' 
ally.^ Jufily^ and Lawfully next^ and Sole Heir of the Blood 
Royal of this Realm. 

T o this Right they faithfully fubmit.^ and oblige them- 
fihes^ their Heirs^ and Fofierities for emr, until the laji 
Drop of their Bloods (their own, and all their Heirs for 
ever) be fpent. 

They befiech his Majefiy to accept the fame^ as the firft 
Truits^ in the High Court of Parliament^ of their Loyalty and 
Faith to his Majefiy^ and to his Royal Progeny^ and Pojierity 
for ever. 

They preface all this by affirming, That they are 
hounden thereunto by the Laws ofGou and Man. 

To put out of all Doubt the perpetual Obligation of 
this Law, in the Intention of the Legiflators, they ena6t 
it, as a Memorial to all Pofierities^ among the Records of Par- 
liament for ever to endure. 

What Law for the Declaration of Right can be 
found, in all the Codes and Pandeds of the World, 
more exprefs, more full, and comprehenfive ? How 
could they bind more ftrongly, themfelves to the King, 
their Heirs to his Heirs, their Pofterity to his Pofterity 
for ever ? They make the Hereditary Right, and the 
Obligation of the Subjefts to it, as far as they can, im- 
mutable, and eternal : They affirm, it is eftabllfh'd by 
Law Divine, and Humane : The Right to the Crown is 
not Poffeffion with or without Confent ; it defcended to 
King James before Pofifeffion, at the Inftant the Queen 
died ; fo it is to defcend by this Law to his H. irs for ever : 
The true Right is (not Pofleffion, but) Inherent Birthright, 
Lineal Suceeffion. Other Perfons were then living, 
of the Royal Family ; but the Next is declarM to be the 
Sole Heir: The Crown is appropriated to the Is^ezt 
Heirs of the Royal Family for ever : The Three Eftates 
vow Obedience and Loyalty to the King, and his Heirs 
by Lineal Defcent ; they debarr themielves and their 



Pofterity from paying it to Others : They devote their 
own Blood, the hji Drop of it, and all the Blood of their 
Heirs, to maintain the Lawful Succeffion againft all Op- 
pofefs : And to this Eternal Duty they are bound by the 
Laws of God and Man. The Vows and A^ts of Fa- 
thers are fuppos'd to bind thejr Pofterity : The Three 
Eftates prefume, that they have a Power to bind Theirs; 
They affirm in this Recognition, That the Court of Par- 
liament vs the whole Body of the Realm ; The Politic Body 
is the fame Now as it was then ; and every Member of 
it hath in Effeft made the fame Recognition ; fo that this 
Adt^ till the Society hath revok'd it Lawfully, lays the 
fame Obligation on every Member of the Society, as if 
he had Perfonally confented tp it. This AQ: is an Ori- 
ginal Contradl, made with the Firft King of this Line, 
and with his Pofterity ; the whole Nation obliges it- 
felf therein to the Heirs of this Family for ever ; if be- 
fore this A£t of Recognition there were Difputes about 
the Right of Succeffion, here they are ended : After 
this Law, there cannot be any reafonable Difpute, to 
whom the true Duty of Allegiance is due, by all Laws^ Rea- n Htn.^: 
fon^ and good Confcience ; for here it is declared. That the ^' * * 
Three Eftates, and all the Realm, are bound by the Laws 
of God and Man., to pay it to the Lawful Heir in the 
Order of Succeffion. 

And here it may be remembred, that the Right bt 
Inheritance, eftablilhed fo fully in this A6t of Recog* 
tiition, is again more briefly, but as effedually decla- 
red in the A6t of Charles II. wherein it is affirmed, 120^2: 
in Oppofition to all Ufurpations, That the Imperial 
Crown of thefe Realms, appertains by Jufi and Vn- 
doubted Right., to the King, and to his Heirs and Law- 
ful SuccefTors. As the undoubted Right was in King 
Charles ; fo after him in his Lawful Heirs : As the 
Crown appertain'd by Law to him, when he was out 
of Poffeffion ; fo it muft be underftood to belong to his 
Heirs and Lawful SuccefTors, if they fhould be out of 
Poffeffion alfo. By the Ad of King James., Birthright 
is declar'd to- be the perpetual Right to the Crown : 
In this A6t oi Charles II. it is affirmed to be the un> 
doubted Right, even when others are in Poffeffion. 
Neither of thefe A6ls are exprefly repealed; and both to- 
gether feem to make an impregnable Proof, that Heredi- 

C. 12. 


taiy Right was by Law the only Right to the Crown of 

a'gainst the pofitive Determination of Law, 'tis 
in vain to objed the Pleadings of Apprentices in Law 
and even the Sayings of great Lawyers difprov d by 
ereat Lawyers, and contradided by themfelves in their 
undoubted Works. In a grgt Cafe debated and refolved 
M Sf,..i .1 by a Lord Chancellor and Twelve Judges, (.) the Rules 
,fc L,rd i Cnrreffion in Cafes of the Crmn, are cited as humti 
SSet" SS ..rf' mdms {,f the Common Law, ag^nfi 
v:&!' M there never hath been, nor ought to be any Dtfpute 
pT BeCcent is affirm'd to be an (b) undoubted Tttk made by 
?6r lL ; And Allegiance is declared to be due, not to the 
(0 Ibid, (c) Crown or Kingdom, bUt to the Km^, even when he is 
f/.Y', id) driven out of his Kingdom. If Lawyers notwithftand- 
gler^it In. will contridia the 1>rinciples of Law, the Right of 
d'Sn""' Defcent, and Duty of Allegiance, can their Contra. 
ZZ"'.. diaion deftroy them ? The Sayings and Sentiments of 
''-'''"- Lawyers muft be judged of by Law which is the 
 adequate Rule of Moral and Civil Adioiy and if 
Uw is not a clear Rule about the Right to Sovereign- 
ty this Difpute can have no Determination ; the Opi- 
nion of Lawyers can neither indemnify Men m this 
World, nor fecure them from Damnation^ in the o- 

^^^Much lefs is this Controverfy to be determined 
bv Fads and Precedents, which, how frequent foever, 
mu^ be iuftified by Law : For Aaions are not Law. 
fuL becaufe they are done and recorded ; but becaufe 
thev are conformable to Law : And it is certain, that 
Iniuftice, publick and private, hath more Precedents, 
and fills Hiftory more, than Right and Juftice. Kmg 
Stephen enjoy'd the Kingdom by Perjury Fraud, and 
Violence; Edward II. was deposd and cruelly mur- 
derM : Edward HI. a Minor, was fet on his Father s 
Throne before his Time ; Henry IV, contrary to his 
Oaths, and his Engagements with his own Party, de. 
pos'd and murderM his Sovereign, and afTumd his 
Crown; RichardWl, befides many other Horrible Mur- 
ders, kiird the King and his Brother, and took their 
Inheritance; Henry VIII. fixd and unfix d the Succef- 
fion, as fuited his Luft and Pleafure: A Parliament 
raisM a Rebellion againft the beft of our Kings, by his 



own Authority; a Part of it DeppsM and Murderd 
him : A Commonwealth was let up; and an Officet 
affum'd the Sovereignty, and tranfmitted it to his Sort 
and Heir : Theie were Impious and Tragical Adlions, 
of which the Actors have been, and are, and will be 
condemn'd, by all good Men for ever. Dr. Higden cant- 
not po0ibly approve them ; yet iby feveral of thefe, and 
fuch Precedents as thefe, He juftifies his Opinion, 
That PoJfeJ/ion with Confent is Right : Tho' the Poflef- 
fion hath been extremely wicked, and the Confent to 
Wickednefs extreme Iniquity. He could find no Pre- 
cedents, in which there was not a long Chain of Wic- 
kednefs ; Perjury, Rebellion, Invafion, Depofition, Mur- 
der, and Poffeffion; he hath colleded out of Hifto- 
ry the greateft Crimes, and calfd them the Conftitii- 
tion : The Bulk of his Proof is, That there have 
been unjuft Poffeffions, juftify'd by Pretence of Con- 
fent and Law , which ever have been , and will 
be the Eflfeds of unjuft Power and Poffeffion. A Di- 
vine might have confider'd, what hath been often ur- 
ged, and feems unanfwerable ; That Unjuft Poffef- 
fion obliges to Repentance and Reftitutiott : And that 
no Man can have a True Right to what he is bound to 
Reftore ; nor can others be obliged to Maintain him 
in it. 

The Doctor, no doubt, had read and confider'd By Br. Bm- 
The true and exa& Hifiorj of the Succejfion. If that J' ^"'^"^ 
Hiftory is not what it pretends to be, the Doctor would 
have oblig'd the World by refuting it ; but if it be 
really true and exaEi^ as it is generally efteem'd to be ; 
it is undoubtedly a full Refutation of the Doctor's 
Opinion : Here it hath been Attempted to prove, that 
his Opinion makes the moft unjuft Poffeffion (as was 
Oliver\) rightful; and deftroys the Hereditary Right, 
fo long Eftabliffi'd by the Conftitution ; and if • the 
Doftor hath not fufficiently guarded his Opinions 
againft thefe Objedions, they feem evidently to Over- 
throw it. 

But becaufe Books not particularly Anfwer'd, are 
boafted as Unanfwerable: And becaufe it may be 
of Service to the Publick, and to Truth itlelf, to 
vindicate our Law and Hiftory from the Miftakes 

F of 


/2\TR0DUCTI0 N. 

of the Reverend Doaor, the Author of the following 
Work hath taken the Pains to follow him ^thro all 
his Labyrinth: And, to make the Way thro it more 
eafv he hath examin d, in the Order of Time, all 
the Hiftorical Fads produced by him; hath refuted 
his Arguments and Comments upon them, and re6ti- 
fy'd his Errors about the EngUJh Conftitution : And the 
beft Commendation of this Treatife is, to defire the 
Reader impartially to examine it. 





O F T H E 

Crown of England 



HE Do6iar's Defign is to prove, 
That, by the Confiitutlon of England^ 
whoever is fully pofTefs'd of the 
Crown and Government of it, has 
an undoubted Right thereby to be 
acknowledged and obey'd as a Law- 
ful King ; that is, he manifeftly af- 
firms. That whoever is King de 
Fa&o^ is by Confequence King de Jure too. And in 
his firft Chapter, he undertakes the Defence of this 
Do6trine, from the known Cuftoms, and uninterrupted 
Practices ; that is, from the Common Laws of the Realm, 
Let us now fee, how he manages his Argument. The 
People of England (faith he) ahays fubmitted and took 
Oaths of Fidelity to the Thirteen Kings^ who from the Con" 
quefl to King Henry VIL came to the Throne without Here- 
ditary Titles^ as well as to the Six HereditaryKings^ who 
reigned in that Period; and this fo univerfaUy^ that I dont 
know, there are any Non-Jurors to be found in thofe Reigns. 

By Hereditary Kings^ it is here evident, the Dodor 
means only fuch, as held the Crown by Proximity of 
Blood; andconfequently by thofe, whom he affirms to have 
had no Hereditary Right, we are to underftand fuch, as 



20 The Hereditary Right of the 

placed themfelves in the Throne, when others, who 

had a nearer Relation to it by Defcent, were living. 

But the Doftot (hould have known, that the Word 

Hereditary had a different Signification, than what he 

has aflign'd to it, in our Ancient Writings. For WiU 

U) Sethis liam the Conqueror {a) ftyles himfelf King Edward's Heir; 

rr.Hickes'^ and calls the Crown of England his Inheritance : And his 

Di'jfert.Epifi. gou Klug Hemy 1. (b) affirms, That his Father fucceeded 

\h)\e his by Right of Inheritance ; and the fame Aflertion may be 

Mr'sdtcn's ^^^^ ^'^^^ ^" ('^^ ^^^^' ^^^^''^'?>^-^'> ^"^ W Ordericus Vitalis. 
MtesonBzd- Why therefore muft the Conqueror be expunged out of the 
'(T'/2oo.' I-ift of Hereditary Kings, when there is fo good Autho- 
(d) i. 2. p. rJty to keep him in ? Surely He very well knew, as did 
^^^' the Hiftorians cited upon this Occafion, that he was not 

the next of Kin to King Edward', and yet we fee, they 
did not think it an Abfurdity to maintain his Hereditary 
Title : Nor certainly is the Doftor ignorant , that 
many of his Friends have lately taken it very ill, that 
the Word Hereditary fhould be appropriated only to fuch. 
as fucceed by Proximity of Blood. The Truth is, a Sue- 
ceffor by Will is an Heir in the Language of the Civil 
Law; and therefore William the Conqueror.^ claiming by 
the Teftament of King Edward.^ might juftly be faid to 
have an Hereditary Title: But this is a Point 1 fhall not 
much contend for ; and therefore if the Dodlor thinks 
fit toinfiftupon it, I am willing to allow him his Ca- 
talogue of Non-Hereditary Kings, in the Senfe he is 
pleafed to underftand that Expreffion : But then he muft 
pardon me, if I think this Conceffion will do him no 
manner of Service. For it is here proper to remember, 
what the Do6tor thought fit for his Purpofe to acknow- 
CO P. 21. ledge in his (e) Defence ; That the Queftion between him 
and his Adverfaries, is about the Duty ofSubjeSfs^ whether 
they are to pay their Allegiance to all Princes, that can fix 
themfelves in the Throne, or only to thofe, who are 
Lawful Kings, independently of their Pofleffion. The 
firft they deny ; and the latter only they think capable of 
a Defence : But furely they do not allow it to be a juft 
Confequence from this Pofition, That they muft never 
fubmit to Princes, whofe Titles are not fupported by Prio- 
rity of Birth, or Nearnefs of Blood; which yet the Dodtor 
-takes for granted, and builds upon, as an uncontefted 


Crov^n of England afferted, &c. 2 1 

Principle throughout this whole Controverfy. I muft^ 
beg Leave therefore to fay, that he has very inaufpi*' 
cioufly, at the Entrance of his Difcourfe, miftaken the 
true State of the Queftion ; for inftead of proving, that 
the People of England have all along own'd the Authori- 
ty of Princes, who had no other Title^ but what they 
deriv'd barely from PofTeffion ; which was his only pro- 
per and neceflary Bufinefs ; he has been pleafed to amufe 
his Reader with an Aflertion (the Truth of which was 
never yet called in Queftion) That many of our Kings^ 
fince the Conqueft, were generally efteemed Rightful 
Succefors^ tho' they were not the next Heirs, by Blood, to 
the Crown. 

I WOULD explain myfelf a little more particularly 
upon this Article; becaufe I find it has been thought of 
Moment by the Friends to the Doctor's Hypothefis. He 
is pleafed to affirm, That the People of England always 
Jubm'itted and took Oaths of Fidelity to the Thirteen Kings^ 
vpho^ from the Conqueft to Henry VII. came to the Throne 
without Htreditary Titles ; that is, who were not Heirs 
by immediate Defcent to the Crown ; and from thence 
he draws this Conclufion, That whoever is in the 
Throne, has, for that fole Reafon, though he (hould 
be deftitute of all other Pleas and Pretences, a fufficient 
Right to the Obedience of the Subjects. But furely 
this Confequerice cannot poffibly be admitted ; unlefs it 
as alfo evident, that where a Title by Birth is wanting, 
that Defed: can no otherwife be fupplied, but by Poffef- 
fan : For if it (hould appear, that much better Reafons 
may be affign'd for this Obedience, which was paid to 
the Doctor's Non-Hereditary Kings; he will then be 
forced to confefs, that his Argument has fallen ftiort 
of his Purpofe. I would therefore intreat him to confi- 
der, F/V/, Whether in this Hereditary Monarchy of Eng' 
land^ there was not anciently a Power in the Crown, to 
interrupt and limit the Lineal Succeffion, by the Exclu- 
fion of the Right Heir. Secondly, Whether the Confent 
and Ceffion of the Rightful Heirs^ are not fufficient to 
convey a Right to Princes, who wanted a Title by 
Proximity of Blood. And then. Thirdly^ Whether it is 
not poffible, that the general Submiffion and Obedience, 
which was paid to feveral of thofe Thirteen Kings, who 
are faid by the Doftor to have had no Hereditary 

G Right, 

11 The Hereditary Right of the 

Right, might be the fole Effect of thefe Motives and 

F/>/, I ask, Whether in this Hereditary Monarchy of 
England^ there was not anciently a Power in the Crown, 
to interrupt the Lineal Succeffion, by the Exclufion of 
the Right Heir ? The Doctor makes no Queftion, but 
this has been an undoubted Part of the Prerogative of 
our Modern Kings, with the Confent of Parliament ; 
and aflfures us, (fjit was a Doctrine univerfally admitted 
by all Parties in Heriry VIIPs, and Queen Elizabeth's 
Reigns. Now I look upon this as a good Ground for 
Frejhmption^ that their PredeceiTors had the fame Autho- 
rity ; for there is Reafon to believe, that whatever con- 
fiderable Branches of Sovereignty have been exercis'd by 
Princes in thefe latter and declining Ages of the Mo- 
narchy, were as amply at leaft, if not in a more emi' 
nent Degree, enjoy 'd by their Royal Progenitors. But I 
need not rely upon Conjectures, when it appears from 
the Teftimony of our Hiftorians, that it was the ufual 
Cuftom, i. e. the Common Law, in the Times nearer 
the Conqueft, for our Kings to difpofe of their Crowns, 
as they thought fit, without regard to Proximity of 
Blood ; and their Method of doing this, was by their 
Laft Wills and Teftaments. (g) Dr. Brady has by fe- 
veral Inftances fhew'd, that tliis is no groundlefs Opi- 
nion ; but if I miftake not, he has omitted an Authori- 
ty, by no means to be forgotten upon this Occafion : It 
is a Paflage in Guil. PiSiamenfo^ (who had been Chaplain 
to the Conqueror, and is mcntion'd by Guil. Gemmeticen' 
fis^ and Ordericus Vitalis.^ as a Perlbn of undoubted Cre- 
dit) in which he (h) tells us. That upon the Conquerors 
Landing, Harold fent a Meffenger to him, to inform 
him, that King Edward the Confeflbr, at the Time of his 

(f) Set his Defence, p. p, &c. quidem, qu5d Rex Edvv^rdus te Aiiglici 

(g) Hiftory of Sttccejfion. Ethelvvul- Regni Hxredem fore, pridem decreve- 
phus paucis ante mortem menfibus Te- rit, & quod ipfe in Noimania de hac 
ft^mentum fecit, in quo Regnum divifit Succeflione Securitatem tibi firmaverit. 
inter Ethelbaldum & Ethelbrithum Fi- Novit autem jure fuum efle Regnum i- 
!ios fuos. W. Malmsbur. de geft. Reg. dem, ejufdem Regis Domini fui dono, 
Ang. 1. 2. c. 2. p. 22. TuncjiiffuPatiis in extremis illius, libi conceffum. Ete- 
in Teftansento, Athclftanus in Regem ac- nim ab eo Temrwre, quo B. Auguftinus 
damatus eft. Idem ibid. 1. 2. c. 6. p. 27. in banc venit Regionem, communem 

(^) Guil. Piaavienfis, p. 200, The gentis hujus fuiffe confuetudinem, Do- 

Woris oj Harold'; Mejfcneer to the Con- nationem, quam in ultimo fine foo quis 

queror. Hxc tibi mandat Rex Hard- fecerit, cam ratam haberi. Quapropter 

dus ; Terram ejus ingreflbs es, qua fidu- de Terra juftb fua cum Tuis te regredi 

cia, qui temeritate nefcit Meminit poftulat, &c. 


Crow^^ of England a fferte^,&cc. iLf 

t)eafh^ bequeathed his Crown to him ; and therefore whatever 
Claim the Duke o/'NoFmandy preterided to />, it could be df 
no Authority ; hecaufe it had been the coiijiant Pra&ice in 
England, ever fince the Coming hither of S. Auguftine, that 
Donations made at the Point of Death were always held good 
and valid. From whence it is evident, that this Poweu 
of the Crown was univerfally {i) acknowledg'd in thofe 
Days; fince the Claims of both Harold and the Conqueror 
were founded upon it; and the Difpute between theoj 
wa& only, which Donation of King Edward fhould have the 
Preference, without calling in Queftion his Authority to 
make tliem. 

I PROCEED now to the Second Query I would r^ 
commend to the Dodor's Confideration ; and that i^ 
Whether the Confent and Ceffion of the Rightful Heirs, 
are not fufficient to convey a Right to Princes, who be^ 
fore had no Hereditary Title ? This I take to be a Point, 
which the Doctor will not be forward to difpute ; (k) 
for it was never yet doubted, but Princes might part 
with their Rights, as well as common Subjeds ; and pre- 
ferr a private Life, before the Burden of a Crown. And 
when luch Refignations have been made openly, and the 
Subjects have had reafon to believe them free, and bond 
fide^ whether by direct and exprefs Terms, or by Actions, 
which fufficiently implied them; the PoJJeJfor of the 
Throne, who is next in Blood, does then certainly ac- 
quire a Power and Authority, which fufficiently jufti- 
fies all his Ads of Government. It is true, by the Judg- 
ment given in the Houfe of Peers upon the Claim of 
Richard Duke of Tork., it was declared, That the Refig- 
nations, without Confent of Parliament.^ did not oblige 
the Makers of them ; but this feems to hare been the 
firft Time, when this Dodrine was publickly efta- 
bliih'd ; and therefore in all former Surrenders by the 
Right Heirs, it does not appear, that their Validity was 
ever queftion'd, though they were not performed in the 
great Council of the Kingdom. 

(i) Mezeray tells tts, it was the ancient caufe He, by Kin?^ Richard, rtus adopted 

Ctiftom for the Kin^s of France tins to as Heir. Holinlliead'^ Chron. p. 51 1. 
difpofe of the Succtjfmn by their laft ffi/ls (k) Similis eft Cijjasftio, an abdicari 

and Teftaments. At the End of Clothaire, poffic Regniim, aut jus fucccdendi in 

2 Tit. Mffiurs & Couftiimes. Thtts King Regnum. Et quia pro fe quifque abdi- 

John pretended the Donation of Ri- care poffit, non eft dubium. Grotius 

chard 1 ; and Henry IV. chdlcngcd -the de Jure Belli & Pacis, l 2. c. 7. re.ii:. 26. 
Realm, not only by Con que jf, hut aljo he- 


24 The Hereditary Right of the 

And thus I have made my Way to the next Que" 
ry I would propofe to the Do6tor ; and that is, Whether 
it is not poffible, that the general Submiflion and Obe^ 
dience, which was paid to feveral of thofe Thirteen 
Kings, who are faid to have had no Hereditary Right^ 
might be wholly occafioned by thefe Motives and Prin- 
ciples ? I am at prefent only concern'd for a bare Pof- 
fibility of the Influence of thofe Reafons in the Cafes 
in Queftion ; becaufe when once that is allov/ed, the 
Doctor's Conftitution will ftill remain to be proved ; and 
confequently we are not advanced one Step in our Difco- 
veries of the mighty Virtue and Efficacy, which attends 
the Pofleffion of a Throne ; tho' we fliould grant him all 
his hii!t of Noti' Hereditary Kings, for which he {o earneft- 
ly contends. But tho' I might content myfelf with re- 
ferring this Matter to the Dodor's farther Confideration ; 
and wait for better Reafons, than he has yet produced 
for the Support of his AfTertion ; I fliall in the mean 
while endeavour to fatisfy him, that the Conqueror^ and 
fomeof his Succeflbrs, did not depend wholly upon their 
Tojfejfwn for their Title ; but had both tliofe Pleas on 
their fide, which I juft now mentioned ; 'viz. The No- 
mination of their Lawful PredeceiTors, and theConfent 
of the next Heirs ; and if thefe were good Reafons, up- 
on which a Claim to the Crown might be founded i 
they were certainly fufficient to juftify the Subjects in 
paying them their Allegiance. 

I BEGIN with WiUiam the Conqueror ; and fhall pre- 
fume to affirm, That he was a Lawful King ; Firfi.^ Be- 
caufe King Edward the Confefor had appointed him his 
Succeffor, which in thofe Days was thought a Legal 
Way of difpofing of the Inheritance of the Crown, as I 
have already fhewed. For the Truth of this AfTertion 
I have all imaginable Aflfurance; fince it is unanimoufly 
attefted by all the Writers, who flourifli'd in, or near the 
Conqueror's Reign. ( / ) Guil. PiBavienfis tells us. That 
King Edward loved the Duke of Normandy as his Son, 
and did not only declare him his Heir, but obliged Ha^ 
rold to fwear to his Succeffion. Ingulfus (who had been 

(/) GulLPiftavienfis, p. ipi. R Ed- mento confirmaturum Haroldum defti- 
wardus Ducem Gulielmum Heredem navit, &c. Et vide p. i8l, ipi, 200, 

fuurn Aatnit, quem loco Germani aut 205 
Prolis adanwbat j & ergo fidem Sacu 


Crowt of England afferted, &c. 

Secretrary {m) to the Conqueror in Normandy^ and was 
afterwards in great Favour with him in England) in- 
forms us, («) That King Edward being much weakened with 
Age y and perceiijing Edgar Atheling to be unfit for the Royal 
7%rone^ as well by the Qualities of his Mind^ as thofe of his 
Body^ &c. appoints William Count of Normandy his Sue- 
ceffor^ and /ends Rohevt Arc hbijhop 0/ Canterbury into Nor- 
mandy, on purpofe to acquaint him with it : And he aflures 
us lik^ife, that Harold fwore to maintain that A^ of 
Settlement. The fame thing is fully related by Wilhelm. 
Gemmeticenjis (Hifi. Norm. /. 7. c. qi.) who fiourilh'd in 
the Conqueror^ Reign. And Ordericm Vitalis.^ an Hiftorian 
of good Credit, who lived in thofe Times, agrees with 
thefe Writers in the Account he gives of this Matter ; 
(l.o. p. 4.911.) (0). I forbear multiplying Citations to 
this purpofe; what I have already produced being a- 
bundantly fufficient to fatisfy thofe, that are willing to be 
fatisfy'd, that we have the concurring Teftimony of ma- 
ny unexceptionable Authors, to prove the Conqueror^ 
Right, by the Nomination of King Edward. Befides, 
this was no rafh inconfiderate Ad of the Confejfor.^ nor 
the fole Eflfe6t of his own Will and Pleafure, without 
the Advice of his great Men and Counfellors; on the 
other hand, we find it ratified by the exprefs {p) AfTent 


( m ) Ingulf. Hift. p. 73, 74. & Ord. 
Vitalis Hift. Ecclef. ]. 4. p. "542. 

( » 3 Ingulf, p. 68. Rex Edwardus 
5enio gravatus, cernens Clitonis Ed- 
•wardi nuper defunfti filium Edgarum 
Eegio Solio minus idoneum, tarn corde 
quam corpore, Godwinique Comitis 
multam malamque Sobolem quotidie 
fuper terram crefcere , ad Cognatum 
fuum Wilhelmum Comitem Norman- 
nia; animum appofuit, & eum fibi fuc- 
cedere in Regnum Angliae voce ftabili 

fancivit. Hinc R.tdwardus Rober- 

tum Archiepifcopum Cant, (utpote Nor- 
mannum) Legatum ad eum a Latere fuo 
direxit, iJlumque defignatum fui Regni 
Succeflbrem, tam debito cognationis, 
quam merito virtutis fuse, Archipraefulis 
relatu infinuavit. Ad hoc Haroldus 
Major domus Regias veniens in Nor- 
manniam, fe WilhelmO Comiti, poft Re- 
gis obitum, regnum Anglias conferva- 
turum juravir, &x. 

Co J I might have added, more Tefii- 
monics d:n o/hadmerus, /^f Chron. Saxo- 
nicum, Brevis Relatio dc Wilhelmo 
primo Rcge, fubli[h'd by S. Taylour, at 

the End of his Book, about Gavelkind j 
alfo from William of Malmsbury, &c. 
/ do not mention the Fragmentum ex Li- 
bro Cadonenfi de vita Gulielmi primi, 
printed by Mr. Camden in his Anglica 
& Normannica, becaufe it is indeed no- 
thing elfe, but a broken Tranfcript from 
OrcSricus Vitalis, as mil evidently ap- 
pear to thofe, nfho compare it nith that Hi- 
fiorian. Lib. 7. p. 647, 656, &c. ^dr. 
Camden ( in his Epifile to Sir F. Gre- 
vill before his Anglica & Normannica) 
fancied it was a Piece of Guil. Pidavien- 
fis ; but that Miftake was very excufabUy 
Ordericus being not then printed. 

(p) Edwardus igitur Optimatum fuo- 
rum affenfu, per Rodbertum Cantuar. 
Archipraefulem hujus delegationis Me- 
diatorem, obfides potentiflimae paren- 
telae Godwini Comitis filium & nepo- 
tem ei direxit- Guil. Pi£tav. p 181. & 
p. 200. He tells Its, that the Conqueror-, 
fent this Meffage to Harold, That he was- 
declared Succeffor by King Edward, non 
fine fuorum Confenfu, veriim Confilio 
Stigandi Archiepifcopi, Godwini Comi- 
tis, Lcutici Comitis, Sigerdi Comitis, 




26 The Hereditary Right of the 

of his Nobility, and the People of England; and this was 
notified to the Duke of Islormandy by the Archbifhop of 
Canterbury^ in a particular EmbafTy for that purpofe, as 
1 before obferved. So that it muft be looked upon as a 
publick A6t of the whole Kingdom; and had all the 
Authority, which the deliberate Concurrence of the Peo- 
ple with the Defires of the Prince, could poffibly give 
it ; and a better, I prefume, the Doctor will not think ne- 
ceffary. And whoever well confiders the Citatidns in 
the Margin, and takes notice of the Conquerors Appeal 
to the Laws of England for deciding the Quarrel be- 
tween him and Hirold^ cannot reafonably believe, he 
would have put his Ca.ufe upon that Tryal, if the Con- 
ftitution had not been manifeftly on his fide. It may 
indeed be objected, that King Edward the Confejfor^ having 
no good Title to the Crown himfelf, could not convey 
one to the Duke of Normandy ; and this I readily allow, 
if by a good Title w€ are to underftand Proximity of 
Blood ; which he moft certainly wanted ; for the IfTue 
of Edmund Ironjide^ Elder Brother to King Edward^ had 
undoubtedly a better Claim in this refpedt, fome of 
which were living in King Edward's Reign. But I de- 
fire it may be confidered, that when the ConfeJJor entred 
upon the Throne, the Ifliie of Edmund Ironfide were in a 
remote Country ; and that by no Fault of King Edward^ 
who had been driven himfelf into Normandy by the fame 
Violence, that forced them into Hungary. So that in that 
Jundure, when the Right Heirs were at a great Diftance, 
their Conditions and Circumftances utterly unknown ; and 
befides it was hardly poffible to give them Notice of the 
Vacancy of the Throne, or receive their Anfwer within 
any reafonable Space of Time ; either there muft have 
been no Government in England; or elfe it muft becon- 
fefs'd, King Edward had good Caufe to take it upon him, 
having a Prior Title to any one elfe then in England. 
If it be faid, He was however an Vnjuft Pojfefor ; his 
' Nephews by his elder Brother being living, to whom he 

qui etiam jurejurando fuis confirmave- marmorum, five poiius uinglorttm. Et 

rant, qu6d poft Edwarii deceflum me re- vide W. MalmsbUr. L. 3. p. 56. Ingul- 

cipeient Dominum, &c. And upon this {asfays,(f.6S.) That KingEivfud ap- 

Grtund it was, that we find the Conqueror ptinted the Duke of Normandy fibi fucce- 

Appealing (ibid.) to the Englifli LoPfs for dere in regnum Anglia Jlabili voce, Ec 

jfu/iice againft Harold. Prseflo ego fum Ord. Vitalis, Lib. 2. p. 492. affirms, 

od agendam caufam contra Haroldum Ttat thts was dtne Confentientibuj An- 

injttdicitf five placet illi juxta Jus Nor- glis. 

t ought 

Croim <?/* England ajferted, &c. i'7 

ought to have refign'd the Crown -, I anfwer : That 
when Hiftories are filent, it does not become private 
Men to be forward in paffing Judgment on the Adions 
of Princes. The Authors who have tranfmitted to us ^ 
an Account of Edward's Reign, fay nothing upon this 
Subjed:; cither that the Defcepdents from Edmund Iroti' 
fide laid Claim to the Crown ; or that King Edward dif- 
covered any Inclination to do them Juftice, at leaft till 
the (q) Eleventh Year of his Reign : But it may poffibly (?) Fior. 
be unrealbnable from thence to inferr, that all that Time ^lafEd l^i 
he was a wrongful Pofleflbr; becaufe Cafes may be fup- 
pofed of Princes, who for Want of Power and Opporr 
tunlty of doing Right to the Lawful Heir, are forced to 
endure theBurden of a Crown, which they would rea- 
dily and gladly eafe themfelves of, upon a proper Occa- 
fion. As, when the Rightful Heir is Abroad, in a diftant 
Kingdom, and perhaps at the Difpofal of a Foreign 
Prince, on whofe Will and Pleafure his Return to fts 
Country chiefly depend^ When the Pofleflbr of a 
Throne has this to plead for himfelf, (which may be 
true of King Edward^ for any thing that can be al]edg'(ji 
to the contrary) I may appeal to the feverefl: Interpreters 
of the Adtions of Princes, whether the Exercife of Roy- 
al Power in fuch Circumftances, can be charged with 
Vfurpation; or as fome choofe rather to exprefs them- 
felves, whether fuch a Perfon is only a King de FaBo. 
,For it is not the bare A6t of Seizing and Filling ^ 
Throne ; but the Will of the Pofleflbr, that muft deno' 
jninate him an Vfurper. He that invades another, s 
-Right, with an Intention to detain it from him, and a 
Relblution never to reftore it to the true Proprietor, is 
.certainly guilty of the higheft Injuftice: But if he ac- 
cepts of a Crown, only that he may fecure it to the 
•Right Owner, and the better difappoint the Defigns of 
.his Enemies ; moft certainly he obliges him by a very 
extraordinary A£t of Friendfliip. In a word, by the 
'Qharader tranfmitted to us of King Edward^ he had 
neither Ambition enough to defire a Crown, nor fo great 
a Love for State and Grandeur, as to be unwilling to 
part with it. When Hardecnute died, and the People of 
England wifti'd for nothing more, than that Edward uzimshur. 
might be Succeffor ; it was not without (r) fome Impor- ^^^^^^^j ^^s- 
tunity, that he vouchfafed to be their King. And fincec."!.* 


28 The Hereditary Right of the 

he is reprefented to us, as a ftrid: Lover of Juftice 
throughout his Reign ; and his Placing Malcolm in the 
Throne of Scotland^ in the Room of the Ufurper MaC' 
hth^ is recorded as a confiderable Inftance of it ; it will 
not become us eafily to believe, he was guilty of that 
Crime himfelf, which he fo feverely punifh'd in ano- 
ther. In the Eleventh Year of his Reign, as I obferv'd, 
he fent an Ambaflador purpofely to the Emperor^ that 
his Defire of feeing his Nephews in England might be 
intimated to them, in order to their PoflTeffion of the. 
Crown of it ; but this Embafify had no Effect till (x) 
three Years after, when we firft hear of their Arrival ; a 
plain Indication, that either the King of Hungary was 
unwilling to part with them, or they themfelves wer6 
very little atfeded with the Offer of a Crown : For what 
other Reafon can be affigti'd, why they (hould fo long 
deferr their Compliance with King Edward's kind Invi^ 
tation ? At length, however, we find them fafely land- 
ed in £/2^/a«c/ ; and now it will perhaps be expected, 
that the Confejfor (hould immediately make a Tender of 
his Kingdom. But the fudden Death of Prince Ed" 
vpard (which happen'd within a (t) few Days after his 
Arriva:l) would have prevented the Execution of fuch ^ 
Defign, had it really been intended ; and his Children 
were yet too young to be trufted with the Government. 
So that all things duly confider'd, I fee no Reafon for 
the Sentence which has been fo peremptorily pafs'd upon 
Edward^ as an Vfirper. I confefs, the Nomination of the 
Duke of Normandj for his SuccefTor, whereby his Ne-- 
phew Edgar was manifeftly excluded, feems to be a 
very plaufible Objedion againft all 1 have faid in his 
Vindication ; for how could he be difpofed to do his 
Kinfman Juftice, when it is plain he difinherited him ? 
To this I anfwer; F/V/?, That whoever duly confiders 
the Circumftances of thofe Times, the Power and Am- 
bition of Harold, with the Condition and Qualities of 
. Edgar Atheling ; will be quickly fenfible, that his Uncle 

(^) Ran.Higden'folychron. ad A.D. enim Rex eum conftitoiffe hsredem fu- 

1055. Rex Eowaidus mifit Aldredutn urn in Anglia ; fed tertio port hoc anno 

Wigprn. Epifcopum ad Jmp. Hen. fe- Angliam veniens obiit Londini, 

cundum,rogans eum,ut miflis apud Hun- ( t ■) This is unanmonjly affirmed hy all 

gariam epiftolis fratuelem fuum Edrfar- the Amkors, that rtritc concerning thofe 

</»w filium Edmundi ferrei lateris, An- Timef. ■- 

gliam inde tranfinitteret : decrevcrat 



. J.'. 

Cromi of England ajferted, &cc, i^ 

did not mean him ill, in denying him a Crown, vvliicK 
he could eafily forefee he would never be able to enjoy. 
When King Edward died, he was too (a) young to do 
the Office of a King; a Circumftance undoubtedly not 
unthoughtof by the Cmfejjor^ who had Reaibri to be ap'. 
prehenfive, that it might lb happen; and then a fair Op- 
portunity would be ofFer*d to the Sons of Godwin^ of ma- 
king themfelves MafterS of the Kingdom, vv'hich he 
knew they had long afpir'd after. Now it is evident, 
from all the Hiftories of this Prince, that he intended 
nothing more, than to difappoint the ambitious Proje6fs 
of that Family, which he (a:) entirely hated ; and there- 
fore took all Opportunities of htimbling them. This is 
affign'd as a Reafon, why he had never any Carnal 
Knowledge of his (y) Queen ; (though other wife a Lady 
that wanted no Charms, and is much celebrated for her 
exemplary Vertues) for we ar6 told by very (z) grave 
Authors, that it was commonly believed, his Averfiori 
to the Brothers begat in him that Refolution, never to 
have any Children by the Sifter. He had not been long 
upon the Throne, when Godwin and his Sons (a) made 
him fufficiently fenfible of their Power, by obliging hirri 
to come to a Compofition with them ; from whence it 
was evident, what was to be expeded after his Deceafe, 
(hould a young, unadive, and irrefolute Prince pretend 
to fucceed him. This Confideration made him caft his 
Eyes firft on {b) the Duke of Normandy^ as the only Per- 
fon capable of defeating the Defigns of Harold ; but efpe- 
cially after (c) the Death of his Nephew Edward^ the 
Father of Edgar Atheling ; for then it was he enter'd in- 
to a ftridt Alliance with Duke WtUiam \ and made it his 
Buiinefs to fecure to him the Crown. 

(«) Ailred. Rievallenfis, fi. 364/»y;, tuere cogitavit ; fed fiiios GW»;n/, ac 

He was a Boy at King Edward .f Death ; Gentis fuae nequitiam formidans, Wi/liel- 

and mentiotis that M a Reafon, nhy the mum Nothum a.\uncu\i fui filium adopta- 

• Englifti nould not have him for their vit. Brompton. Chron. p. po8. & vide 

King. Puer tanto honore minus ido- pag. 945. & Ingulf, p. 68. 

iieus videbatur. ( c ) Rex itaque defunclo cognato (fc. 

(at) Ingulfus, p. 68. Edwardo Principe) quia fpes prioris 

( ^ ) She vfOi E. Godwin'/ Daughter. erat foluta SufTragii , WilUelmo Cemiti 

(i ) Ail. Rievallenfis, p. 378. Will. Normannit Succemonem Angliae dedir. 

Malmsburienlis dc Geft. Reg. Ang. L. 2. Erat ille hoc munere dignus, prsftans 

c. 1 3. p. 45. animi Juvenis, & qui iu Supremum fa- 

( <e ) Chron. Saxtfn. ad A. D. 1048. ftigium alacri Jabore excreverat. WiU. 

(t) Edgarum Meling Samftus Rex Malmsbur. de Geft. Reg. Ang. L. 2. cap. 

Edwardus, aum poftmodum rcgtiaret pro ult. p. 52. 

filio nutrivit, & haeredem Anglias infti- 

I But 

30 7he Hereditary Right of the 

But there was one thing farther, which contributed 
moft to determine King Edward in this Choice of a Suc- 
ceflbr ; and that was, the very mean Genius, and manifeft 
Inabilities for Government, he obferv'd in his Nephew 
Edgar y for befides his Incapacity, by Reafon of his Age, 
lie had the Misfortune to want a due Proportion of 
thofe common Endowments of Mind, which were indi- 
fpenfably requifite, at that Time efpecially, to fupport 
him upon the Throne ; through which Defeds in his 
Underftanding, he muft foon have fallen a Sacrifice to 
thofe, who aimed at the Crown. This is attefted by fo 
good Authority, that it cannot reafonably be doubted 
of: {d) Ingulfm exprefly affures us, that this was the 
chief Reafon, why King Edward vdukd, to t\2mt Edgar 
his Succeflbr ; viz, Becaufe he perceived him to be unquali- 
fied for the Crown^ as well by the Infirmities of his Mind^ as 
thofe of his Body. But CO William of Malmsbury gives 
us his Character in plainer Terms ; By reafon ( fays he ) 
of his unaBive.^ and lazy Difpojition^ and {to ufe a fofter 
Term) his Simplicity^ he became contemptible : And after ha- 
'Ving been for fome while the Sport of Fortune.^ he is now fpend^ 
ing the Jhort Remainder of his decrepid Age., privately., and 
di/honourably in his Country-Retirement. Now I do not 
mention thefe Particulars, as if I thought his Qualities, 
how mean foever, could deftroy his Hereditary Right ; 
but only to (hew, that thefe were eftecmed good, and 
fufficient Reafons, even by his Friends, who were moft 
concerned for his Intereft, to keep him out of the 
Throne ; to which how juft foever his Title was, his 
Uncle thought it would be a better Proof of his AfFe- 
6tion to him, to leave him in the Condition of an emi- 
nent Subjed-, than that of a Titular King, which was 
the moft could be expeded. If I ftiould add, that Ed- 
gar was fenfible, it was his Intereft, to decline the PofiTef- 
fionof the Crown, and therefore complied with his Un^ 
cle's Settlement of it ; I Ihould not want Reafons to 

id) Ingulfus, p. 68. R. Edwardus libram argcnti, quam quotidie in Stipcn- 

fenio gravatus, cernens Edgarum Regio dio accipiebat, Regi pro uno equo per- 

folio minus idoneum, tam corde qnam donaret ? Tandem Edgarus in Ang- 

iorpore, Godwinique Comitis multam ma- liam rediens, diverfo fortunse ludicro 

lamque Sobolem, &c. rotatus, nunc remotus & tacitus canos 

(r) Will. Malrasbur. p. 105. Pcdeten- fuos in agro confumit. Etp. 93. Edga- 

tim pro ignavia & ( ut mitius diftum nis Athelinglus nunc pene decrepitum 

lit) pro Simplicitate contemptui habeii diem ignobilis ruri degit. This was in 

coepit. C^iiantula eliim Simplicitas ut JOng Stephen'^- Rdgn. 


CroTon of England afferted, &CC. 5 1 

countenance this Opinion ; but they will more properly 
be taken Notice of hereafter. 

Hitherto I have endeavour'd to apologize for 
King Edward's Advancement of the Duke of Normandy 
to the Throne ; taking it for granted, that the Right of 
Inheritance was really in his Nephew Edgar. But, Se- 
condly^ What if it Ihould appear^ that Edgar had not Co 
good a Title, as has been generally pretended ; but that 
King Edward himfelf was all along the true Proprietor / 
of the Crown he enjoy 'd, and might difpofe of it as he 
pleafed ? I hope it will then be allowed, that no Wrong 
was done to Edgar, by calling the Duke of Normandy to 
the Succeflion. I defire therefore it may be confidered^ 
that the Claim of Edgar could only be founded on his 
Defcent from Edmund Ironjide his Grandfather ; but Ed- 
mund being reduced to Extremities, does, (f) by the Ad- 
vice and Approbation of Iiis People, content to a Par- 
tition Treaty, whereby the whole Kingdom was divided 
between him and Cnute ; and upon Edmund's Death, (g) 
all the Nobility and Bifhops of the Realm declare up- 
on Oath, That, by Veitue of the forefaid Treaty, King 
Cnute was rightfully entitled to the PofTeffion of the 
whole Kingdom of England ; and they (h) took their 
Oaths to him accordingly, as to their Lawful Prince, 
without any Regard to the Sons of Edmund, whom they 
denied to be their Kings. I know very well, that feve* 
ral of our Hiftorians are very angry with their Country- 
men upon this Account ; and tell us pofitively, they were 
perjur'd, by a falfe Atteftation concerning the Terras of 
this Treaty : But how came they to know that ? And 
what Authority do they produce for this Accufation ? 

(■/) Chron. Saxon, ad A. D. 1016. mentio de Succefllone fratrum aut filio* 

Turn, confilium dabant Edricus Dux & rum Edmnndi, poft mortem ejufdem, 

Proceres, qui ibi aderant, ut Reges in- fafta fuiffet ; qui refponderunt qujd 

ter fe pacem firmarent. Reges idcirco non, &c, Brompton. Chron. & Ran. 

convenerunt apud Olenige, & inter fe Higden. 

amicitiam ibi confirmanint, &c. Hen. ( A ) At illi (fc. omnes Epifcopi, Sc 

Huntingdon. L 6. Conveniente igitur Duces, nee non & Principes, cumSique 

populo, & prse gaudio lachrymante, Ed- Optimates Gentis Angliae, Londoniae 

mitnius fufcepit regnum Weft-Sexe, Cnut congregati ) juraverunt Canuto Regi, 

vero regnum Mercias, &c. Sufceptum qu^d eum Regem fibi eligere vellent, 

eft hoc dLflum ab utroque exercitu, & eique Jibentfer obedire ; & fuo Exerci- 
magno aflenfu firraatum. WiU. Malmf- , tui veftigalia dare, & accepto pignore 

bur. ]• 2. c. 10. de raanu fua nuda cum jurameinis il 

(g) Poft mortem Edmundi, Rex Qm- Principibus Danorum fratres & filios Ed- 

tHS a Proceribus & Epifcopis fuis quasfi- ntHndi omnin6 defpexcrunr, eofque Re- 

vit, fi in uUo foedere Sociali inter ipfum ges efle negaverunt. Sim. Dunelm. ad 

Sc Edmundum Regem nuper inito, aJiqua A. C. 1016. Flor. Wigorn. 


3X The Hereditary Right of the 

Truly none at all : But they expert their bare Word 
fliould be taken ; and we are to believe all the Great 
Men of the Kingdom were Perfons of neither Con- 
fcience nor Honour ; becaufe it is the Will and Pleafure 
of thefe Authors it (hould be fo. I fhall beg Leave there- 
fore to look upon that Publick and National Teftimony, 
relating to the Agreement between King Edmund and 
Cmte^ to be a good Proof of the Right and Title of the 
latter, till fome Evidence appears to the contrary ; and 
from the whole Matter I inferr, That King Edmund ha- 
ving made an abfolute Surrender and Dedition of his King- 
dom, after his Deceafe, to King Cnute ; his Sons, and their 
Iflue were thereby entirely deprived of their Right of 
, " Succeffion ; and confequently Edgar Atheling had no jufl: 
Pretenfions to the Crown of England. But it will be de- 
manded. How could the Confejfor derive a Title from 
King Cnute ? I anfwer ; The Confejfor being Half-Brother 
to King Hardecnute., (the Son of Cnute) and much in his 
Favour, was (i) appointed by him his Heir and Succejfor; 
by which Donation having acquired the Crown , he 
had it entirely in his Power to dilpofe of it as he pleas'd ; 
and was under no Legal Obligation to give it to his Ne- 
phew Edgar^ rather than to the Duke of Normandy. Ha- 
ving thus vindicated the ConfeJJors Grant of his Kingdom 
to the faid Duke ; 1 fhall now proceed farther in my 
Undertaking to clear his Title. 

• It may poffibly be objedted againft it, that King 
Edward.^ when he lay a dying, named Harold for his 
Succeflbr; whereby his former Grant to the Duke of 
Normandy was revoked, according to the Law of Eng- 
land ik) before mentioned, which held all Donations for 
Good and Valid, which were made at the Hour of 
Death; and we are told, That Harold challenged the 
Crown by Vertue of fuch a pretended Nomination. 
But the Authority of William of Malmshury (who lived near 
thofe Times) is fufficient to render it fufpe6led : (/) He 

( i ) Encomium Emmse, p. 177, Har- bus annis exiftens, exivit hominem, & 

decnuto fraterno correptus amore, nuncios Edwardum mim Regni reliquit haredem. 
mittit ad EdvarduM, rogans ut veniens ( /i ) P. 23. 

fecum obtineret regnum ; qui fratri ad- ( / ) Will. Malrasbur. de Geft. Reg. 

veniens Anglkat partes advehitur Ang. 1. 2. cap. ult. Port mortem Ed- 

hic fides habetur Regni Sociis, &c. Guil. wardi, Haroldus arripuit Diadema Ang- 

Gemmeticenfis Hift. Norm. 1. 7. Har- \\x, quamvis Angli dicant a Rege con- 

Aeenutui paululum confirmatus in cul- ceffum : quod tamen magis benevolen- 

mine regni, fratrem fuum Edwardttm a tia quam judicio allegari exiftimo, ut illi 

NormanniX revocavit, ac fecum cohabi- hzreditatem transfunderet fuam, cujus 

tare fecit. Ipfe autem non plenis duo- fcmper fufpeiftam habuerat poteftatcm. 


Croviu of England averted, &c. 33 

confeffes indeed, that h was reported by the Englifh, that 
King Edward did appoint Harold his Succefor; but he tells 
us likewife, That be did not think it probable^ that Edward 
jhould transferr the Right of Inheritance on a Perfin, vohofe 
Power he always apprehended^ and was jealous of. This 
(hews, that there was no good Evidence in thofe Days, 
of the Fa 61 in Queftion ; for if there had, it would have 
been irapoffible for Malmsbury to be ignorant of it. If 
any thing of that Nature had really happen'd; it ought 
to have been well attefted, and publickly proclaim'd 
throughout the Kingdom, that there might have been 
no Room for a Doubt concerning it. The Donation to 
the Duke of Normandy was made with Solemnity ; it 
' was notified to him by no lefs a Perfon, than the Arch- 
bifhop of Canterbury ; it was ratified by the Confent and 
Approbation of the Nobility, and People of England; 
and laftly, his Right of Succefiion was fworn to by 
Harold , and others the moft eminent Perfons of the 
Kingdom; fo that we have not one Hiftorian,. who flou- 
rifh'd in or near thofe Times, but takes Notice of it ; 
neither was there a Man in England^who could plead Ig- 
norance of fo publick a Tranfa6tion. WhatReafon, can 
we imagine, there (hould be, for Edward to revoke his 
firft Donation, and appoint Harold his SuccefiTor, inftead 
of the Duke of Normandy ? Was Harold more nearly re- 
lated to him ? The Contrary is well known. Had the 
Duke of Normandy ever offended Edward? Nothing of 
this Nature appears in Hiftory. Was it more for the 
Intereft, and Peace of the Kingdom ? That would be a 
ftrange Affertion, if we confider Harolds Oath to the 
Duke of Normandy., by Vertue of which that Duke had 
a juft Caufe of War againft him, if he (hould prefume 
to take Poffeffion of the Throne. In a word, the 
ftronger the Motives were to alter the Succeflion, the * 

more reafonable it was to eftablifh fuch an Alteration by 
the bell Authorities, and in the publickeft Manner; 
whereas on the contrary, we have all imaginable Affu- 
rance of the Settlement made on the Conqueror; but very 
fiend er Proofs of Harold\ Title. 

T o conclude ; If after all I have hitherto urged in re- • 
lation to Edgar Atheling., his Claim (hould be (till thought 
good, and unconteftable ; I beg Leave to obferve far- 
ther, that after the Death of the Confejfor^ he either for- 

K bore 

54 fhe Hereditary Right of the 

bore to challenge the Crown as his Right ; or elfe made 
an abfolute Surrender of it. When Harold took Poflef- 
fion of the Throne, we meet not v/ith the leaft Intima- 
tion in our Chronicles, that he thought himfelf injur'd ; 
nor was there an Englijh Man, that we hear of, that re- 
fented his Exclufion. Can we then imagine, that his 
Title was at that time look'd upon as unqueftionable ? 
Or muft we believe the whole Nation unanimoufly con- 
curred in depriving him of his Right ? If they did, then 
the Injury was done him by his own People, not by 
the Conqueror ; for he only difpoflefs'd Harold^ who had 
no Right ; and it could not be expeded from him, he 
fliould place a Perfon in the Throne, whom they had 
before rejeded. It is true indeed, after the Battle of 
Haftings^ when the Saxon Nobility were fenfible, that 
their Liberties and Fortunes were in imminent Danger^ 
and fome bold and daring Attempt was neceflary ; they 
(m) declared Edgar their King ; and placed him at their 
Head, in order to make a Stand againft the Conqueror ; 
but this was a defperate and vain Effort, as the Event 
foon ihew'd ; and then (n) Edgar^ with his Adherents, 
fubmit themfelves to King William^ and fwear Fealty to 
him. In a little time after, it muft be confefs'd, Edgar 
(o) revolted, and joining with the Scots^ laid Siege to 
Tork ; but the Conquerors Appearance obliged him imme- 
diately to retire ; and then he found it necefifary, by a 
frefh {^) Submiffion, to fue to him again for Favour ; 
which he very generoufly granted him, and gave him 
many noble Teftimonies (q) of it. From that Moment we 
hear no more of him, during the Conquerors Reign ; but 
that he was well contented with the Honours and Riches 
heap'd upon him, and never would be perfuaded to 
ftruggle more for a Crown ; which, in the Opinion of all 
wife Men, it was no more for his Intereft, than it was in 

( m ) Guil. Piiftar. p. 204. Et Guil. 
Gemmet. p. 25?0. 

( /» ) Order. Vitalis, p. 503. Edga- 
TMs Adelims refiftere diffidens humiliter 
Gnlielmo fe regnumque contulir. 

(.0 p q) Guil. Malmsburienfis. Ed- 
garus ^htlingitts cum Stigando & Al- 
dredo Archiepifcopis Regis dedititius, 
fequenti anno, fafto ad Scotum tranf- 

fugio, jtujurandum m.Kul/tvit. 

Rediit vcro brevi Edgarta & impetia- 
vit veniam, & mtgno Donative donatus 

eft, & pJurimis annis in Curia manfit. 
Guil. Pi£tav. p. 208. Addinnm, quem 
poft Haroldi ruinam Angli Regem fla- 
tuere conati fuerant, amplis term di- 
tavit, atque in chariflimis habuit cum, 
quia Regis Edirardi genus contigerar. 
Order, vitalis, p. 503. Rex vera Ga- 
liclmw, quia idem Puer [Edgarta fcil.) 
mitis & fincerus erat, & Confobrinus 
Edwardi Magni Regis, ainicabiliter eum 
amplexatus eft, & omni vitS fua inter 
filios fuos honorabiliter veneratus eft. 


Cromt of England afferted, &c. 

his Power to obtain. It is evident, therefore, front 
good Authorities, that Edgar made a full and abrolut;e 
Kefignation of his Claim to the Conqueror^ by Vertue of 
which (had Y%\v\g Edward\ Settlement been of no Au* 
thority) he now became a King de Jure^ and had a Right 
to the Obedience of the People of England ; and there' 
fore, with the Doctor's Pardon, I (hall reckon him a- 
mong thofe Kings, who had a good Title, independent 
on their Pofleffion. 

I SHALL now try, if I can do as much Service to 
his Son William Rufus ; and that can be no difficult Un- 
dertaking, if the Kings of England had a Power of 
naming their SuccefTors; which, by the Authorities J 
have produced, teems very reafonable to believe. That 
the Conqueror declared Rufus his Succeflbr to the Crown 
of England^ can never be controverted by thofe, who ar? 
acquainted with our Hiftories ; which agree in nothing 
more, than in this Particular Fadt. It is true, Robert 
Duke of Normandy^ being eldeft Son to King William^ 
pretended England belong'd to him by Right of Inheri- 
tance ; and therefore, with the Affiftance of fome of the 
great Norman Lords fettled here, gave Rufus fome Di- 
fturbance for two or three Years. But it feems, the 
Englijh (who had the Confidence, in thofe Days, (r) to 
value themfelves upon their Fidelity to their Princes^ 
(j) thought Rufus s the better Title ; and therefore firmly 
adhered to him ; and defended him fo well, that Ro- 
bert found it advifable to come to an Agreement with 
his Brother, (t) by which the Kingdom was entirely 
yielded up to Rufus. We are told indeed, that (u) Ru^ 
fus violating the Articles of this Treaty, the two Bro- 
thers were foon after engaged in a frefh War ; but thofe 
Differences were in a very little time amicably compO' 
fed, by the (x) Mediation of Philip King of France; of 
which the (y) French Hiftorians have given an ample 
Account ; and we do not find, that Duke Robert gave 

( r ) Ord. Vitalis, p. 666. The Eng- 
lifh fpeai tt Rufus : Solertcr Angloruin 
rimare hiftorias, inveniefque femper fi- 
dos Principibus fuis Angligenas. 

( J ) Ord, Vitalis, p. 666, 66j. 

(r) A. D. lopi. Ord. Vitaiis, p.6<?3. 
Flor. Wigorn. ad A. D. IC91. 

(«) Fior. Wigorn. ibid. 

( .V ) Gui). Gemmet. p. 2p^. 

iy) Prajfat. D, Gale ad Hift. Biit. 

Scriptores. Cur Guilielmo primo Gul. 
Rufus in Regno fuccefferit, pofthabuo 
feniore fratre Roberto, aut iiuUam aut 
futilem rationem adferunt noftri homi- 
nes. Habuit cert^ ea res notilem con- 
troverfiam, cujus Gallorum Rex »rhv- 
ter, deleftus, folenne pro rribiinaii De- 
cretum piotulit, & Fiatref ad CoiiGoi- 
diatn icduxit. 


5^ The Hereditary Right of the 

his Brother any farther Trouble, during his Reign. On 
the contrary, (z) about five or fix Years before Rufuss 
Death, Robert mortgages his Duchy of Normandy to hini 
for I oooo Marks, and leaves him in Pofleffiou of it, 
during his Expedition to the Holy Land; and it is well 
known, King Rufm held it as long^as he did the King- 
dom of England: So that if the Conquerors Authority to 
difpofe.of his Crown fliould be difputed; his Son Rufus 
was however a Rightful King, for the greater Part of his 
Reign, by the Confent and Agreement of his Brother. 
As for Edgar Athel'mg^ it is evident, upon the ftrid:efl: 
Enquiry, that he never laid Claim to the Crown after 
the Conqueror\ Deceafe ; neither had he any Friends to 
prompt him to it. The Englijh^ I have obferv'd, were 
unanimous for Rufus^ on whom alone Edgar had Reafon 
to depend ; and if we fearch the Records of thofe Times, 
we fhall meet with manifeft Signs and Indications of his 
entire Submiflion to Rufus^ as to his own particular 
Concerns, {a) In the la ft Year of the Conqueror^ it ap' 
pears, that Edgar obtained that Prince's Confent to go 
into Abulia with Two Hundred Men ; and we are af- 
fured he fet Sail from England upon that Expedition. In 
the Year 1089, we find him \n Normandy; and then it 
is {h) faid, he was one of Duke Roberts chief Counfellors. 
Now it muft be obferved, that Duke Robert did at that 
time challenge the Crown of England himfelf; and 
therefore we may be confident, Edgar^ who entirely de- 
pended upon him, and thought himfelf happy in that 
Prince's Friendfhip, would not difoblige him by fetting 
up an oppofite Claim of his own. 'Tis rather proba- 
ble, that Edgar would have been glad to have feen Ro^ 
hert on the Throne, (c) for whom he had a moft paffionate 
Concern and AfFedion : But however that might have 
been ; we are fure, that afterwards, upon the Reconci- 
liation of the two Brothers, EAgar alfo made his Peace 
with Rufus; which, we may be pofitive, could not be ef- 
fected, without the Recognition of his Title, and a 
Tender of his Service and Obedience : For a Proof of 

( X.) Flor. Wigorn. ad A. D. io6?. ( i ) Ord. Vitalis, p. 6Si. ]. 8. Ed- 

Guil. Gemmet. p. 296. Ord. Vitalis, gar Adelinus unus ex prscipuis Ducis 
p. 723. Eadmer. Hift. Nov, 1. 2. p. 35. Normanniae Confiliariis. 

(4; Flor. Wigorn, ad A, D. 1086. (f) Ord. Vitalis, 1. 10. p. 778, Du- 

Et Sim. Dunelm. p. 213. cem Robertum fibi coxvum quafi Colla- 

iianeiuQ f^atrem diligebat. 


Cronxin of England afferted, &c. 

which, he undertakes to mediate {d) a Treaty between 
Scotland and Rufus^ which terminated in a happy Peace 
between them. A few Years after, we are intbrm'd, 
that (^e) Rufus took Care to (hew, in what a Degree of 
Favour and Credit Edgar was with him, by placing him 
at the Head of an Army, that he might fettle his Ne- 
phew on the Throne of Scotland. Now thefe mutual 
KindnefiTes, that pafs'd between Edgar and the Two Bro- 
thers, are evident Tokens, that he had abandon'd all 
Thoughts of a Crown, and defired only to enjoy their 
Friendfhip, in the humble Condition of a Subject, 

The SuccefTor to Rufus was his Brother Henry^ whofe 
Title muft be the next Subject of Examination. And 
what is there, that can fairly be objedted againft it, if 
the Conqueror's Tefiamentary Power is admitted ? Was not 
Robert^ the eldeft Son, legally excluded by it? And did 
not that Exclujion juftify Henrys Claim after Rufus ? Or 
muft we fuppofe the Conqueror (who (f) had been highly 
provoked by Rohert\ frequent Rebellions, by which his 
Life was often endanger a ; and w1io,befides, (g) plainly 
difcern'd in his Son an utter Incapacity for Government) 
intended only a fhort Sufpenfion of his Tz>/e, which was 
to revive again upon Rufus\ Deceale ? Upon the Death 
of this Prince, Htmy lofes no Time ; but, with the {h) 
Approbation of the Nobility, immediately fteps into 
the Throne, and was univerfally obey'd by all the (i) 
Engli/h^ as their Lawful King. But when Robert re- 
turn'd from the Holy Land^ which happened very foon 
after, he prefently renew'd his Claim ; and was affifted 
in his Attempts to recover it, by feveral Norman Lords 
then refiding in England. Now the Queftion is. Which 
Piirty was in the Right; the Englijh who adhered to 
King Henry^ or the Normans who endeavoured to depofe 


(_d) A. D. icpi. Vide Flor. Wi- 
gorn. &Ord. Vital, p. 701. 

(e j Sim. Dunelm. ad A. D. ICpy. 
Buchanan. Rer. Scot. 1. 7. tbl. 75. & 
FJor. Wigorn. 

(/) \Vill. Malmsb, de Wilhel. pri- 
me, l.^.p. 5p.&p. 62. RobeitusPhilip- 
pum Regem Francorum contra Patrem 
eicitavit ; quare & Genitoris benedi- 
ftione & hxreditate friiftratus, Anelia 
port mortem ejus caruit, Comitatu Nor- 
mannix vix retento. Et p. 86. 1. 4. de 
Henrico primo. 

{g ) W. Malmsb. in fine Lib. 4. ds 
Rege Hen. primo : Robertas pro md- 
litie animi nunquam regendae Reipub- 
licje idoneus judicatus. Et vide W. 
Gemmet. p. 298. Ord. Vital, p. 572, 
■573, 659, 815. 

( A ) Chron. Saxon, ad A. D. 1 100. 
Optimates qui propj fuerunt, ejus fra- 
trem Heanrigum in Regem elegerunr. 

(«■) Rog. Hoveden. in Hen. primo : 
Epifcopi, milites gregarii, & Angli 
animo conftami cum Henrico perjiiure. 
Et Ord. Vi talis, 1. 10. p. 786. 


5 8 The Hereditary Right of the 

him ? If the former ; then Henry was a King de Jure in 
riieir Opinion : If the latter ; then it was Lawful to take 
up Arms againft a King in Fojfejjion^ for the Right Heir 
out of Pojfejion; which is manifeftly againft the Doctors 
whole Defign and Purpofe. Poffibly it will be faid, the 

. Englijh obey'd King Henry, becaufe he was in Fojjejfion; 
and could not be juftified upon any other Principle. But 
how do we know this ? Is there any Evidence yet pro- 
duced ; or does any thing appear in our Hiftories, fuffi- 
dent to fupport fuch an Affertion ? This is the Point in 
Difpute, which muft be proved, before the Doftor can 
reafonably expeft his Adverfaries (hould be convinced ; 
and how he will be able to do that, becomes him to con- 
lider. Laftly, when the Dodtor has done his worft, he 
can only prove King Henry to have been an Vfitrper tlie 
firft Year of his Reign ; for in the fecond, Duke Robert 
came to a Compofition with his Brother, by which he 
abfolutely yielded up the Crown of England to him. 
(k) Orderims Vitalis ^ffuves us, that when both Armies were 
in Sight of one another, and every Moment an Engage- 
ment expedted, Henry fends to his Brother Robert , to de- 
mand the Reafon of his invading him. Robert anfwers. 
That he had enter d his Fathers Kingdom as due to him by 
Birthright, Henry then propofes a Conference, which was 
agreed to, and held before both Armies ; the IfTue of 
which was. That both the Brothers very affe&ionately embra- 
ced and kijfed each other^ and immediately became Friends ^ 
Robert renouncing all Pretentions to England for the fu- 
ture ; and Henry obliging himfelf to pay him 90C0 /. per 
Annum^ and reftore to him fome Lands in Normandy. Thus 
was Henry confirm'd in his Throne, and reign'd very 
profperoufly the Remainder of his Days, without any Re- 
bellion or Difturbance. A few Years after, it is true, 
Robert^ by (/) breaking the Treaty he had made with his 

. Brother, and his Oppreffive and Tyrannical Govern- 
ment, provoked Henry to invade Normandy; and tHe 
Event was, that Robert was taken Prifoner, and fent into 
England ; where he (m) remained under Confinement in 

(i) Grd. Vitalis, 1. lO. p. 788. ad bert b(hi£ taken Prifoner in the Tear i ro5, 
A. D. 1101. & Chron. SaxoD. continued for 20 Tears in the Ciifiody of 
(I) Ord. Vitalis, p. 814, 815. RCger Bijj^op of Salisbury, and then, by 
( w ) Ord. Vitalis, p. 823, 866. The the yldvice of the Emprejs Maud, and Da- 
Saxon Chronicle reprefents this Matter vid King of Scots, n^is cotnmitted to the 
othtmije ; for thcrtwefind, that D, Ro- Care of Robert Earl of Gloucefter, in 


Croim <?/ England afferted, &c. 35 

the Caftle of Bn^ol to the Time of his Death, which 
was the Space of Twenty Seven Years. 

Upon this Occafion I hope I ihall be pardon'd, if I 
ftep a little out of my way, to wipe off an Afperfion caft 
upon this Prince in our common Hiftories, upon the ac- 
count of the Ufage of his Brother ; as if it were beyond 
Example barbarous and inexcufable. 

I H A V E faid, that King Henry found it neceflary to 
invade Normandy^ upon the repeated Complaints and Im- 
f)ortunlties of tlie Inhabitants of that Duchy, who re- 
prefented their Miferies as infupportable under his Bro' 
ther's Government. For when the (n) Pope defired King 
^enry to releafe Duke Robert out of Prifon, and reftore 
Normandy to him as his Right ; the King anfwers, That 
what he had done, was at the preffing Inftances of the 
Bifhops, the Clergy, and the chief Nobility of Norman- 
dy; ttie infufferable Oppreffions of his Brother tending to 
the manifeft Ruin of their Country ; and therefore they 
intreated him to refcue it from the Tyranny of a Perfon, 
who was by no means fit to govern. This was the true 
Motive of that Expedition againft Robert ; and this was 
the Reafon, why he would not truft him again with the 
Government of Normandy; but fent him into England^ 
there to be kept under a Gentle Confinement. I call it a 
Gentle Confinement ; becaufe I think I have good Warrant 
fo to do; notwithftanding many celebrated Writers, 
and fdme of them of good Antiquity, have related a 
tragical Story of the Hardfhips he endured in his Im- 
prifonment, and that at laft he was deprived of his Eye- 
fight by the barbarous Commands of his Brother. The 
firft Author I have met with, who thought this Story 
worthy of Credit, is Matthew Paris^ who gives a parti- 
cular (0) Relation of it. But againft his Authority it 

Briftol Caflle. Chron. Saxon, ad A. D. j4n}>liam, Rohertum fratrem fuum, & 

1 1 26. This is alfo confirm'd by Matthew Wilielmttm Moretonii Confulcm perpetuo 

paris'j Chronicon, ( / MS. written mth carceri maiicipavit. Eodem tempore 

hii own Hand, novf in the Cotton Li- Dux Roberttu immemor illius boni con- 

Irary. Claudius, D. 6.) in which are the filii, Chumili^mini fab potenti mmn) in 

jdlktHng Words : Rex autem viflor in ampullofa verba & minas prorupit, fal- 

Angliam rediens, fratrem fuum Rober- fis pollicitis, & praecipufe Comitis Ceftren- 

tiun mifit ad Cafirum de Devifes depu- fts animatus; deceptis igitur cuftodibus 

tatum Cuflodia: XII. virorum fortium, conatus eft cvadere : fed fugiens ab eif- 

perpetuo carceri mancipaiidum. The Gj- dem captus eft, incidens fuo raanno in 

file of the Devifes belong d to the ftiid bitumen profiindum; fuerat autem reve- 

Roger Bifljop oj Sarum. renter in Jibera cuftodia detentus. Quod 

(») Ord. Vitalis, ]. 12. p. 865, 866. cum Regi nunciaretur, juflit eum ar- 

(0) Matth. Paris, (p. 63. ad A. D. ftiori carceri & cuftodise mancipatum, 

1107.) Rex Archiefijcopum fecutus in fulgent i obfiacnh ocnlorum Ince privari. 


40 The Hereditary Right of the 

may juftly be objeded, Firft^ That he wrote his Hlftory 
above a Hundred Years after the Fa6t in Queftion. Se^ 
condly^ This Piece of Hirtory is not found in Ro^er Wen- 
dover, (as (f) Dr. Watts has obferv'd) which is fufficient 
to render it fufpedted ; for thofe who are proper Judges 
in thefe Affairs, tell us, (g) that Matthew Farts is but 
the Contimator of Roger Wendover^ and intended only to 
carry on the Series of Hiftory, where the other left off. 
It is true, in that Edition of Weniover^ which Paris has 
given us, we meet here and there with fome Infertions, 
not warranted by the genuine Copy of Wendouer in the 
Cotton Library^ yet fuppofed to be added by Matthew Pa^ 
ris himfelf; but it has been obferved by learned Men, 
that (r) thofe Interpolations are generally Pieces of fecret 
Hiftory, and unworthy of any Credit. 

Matthew of Wefiminjier is the next Writer, that has 
occurr'd to me, in whom this Story is to be found ; and 
he feems to relate it more fully, than Matthew Paris. His 
Account is this; (p. :^7.) That Duke Robert having at- 
tempted to make his EJcape out of Prifin^ had his E)es put 
out in fuch a Manner^ that the Bails of them were fiill pre^ 
Jeri/d entire; and thus he ended his Days 'very miferahly. 
But Henry Knighton (who wrote at the latter End of Ri- 
' chard Il.'s Reign) has thought fit to add thefe farther 
Circumftances ; That Duke Robert being condemn d to die 
by the Barons of England, his Brother did him the Favour to 
caufe his Eyes to be put out^ by fome (s) burning Injirument 

( p ) Dr. Watts, in Variant. Left, ad P. 73. The Story of Robert Duke of 

Matth, Paris, p. 63. Normandy'/ Death is not to be found in 

{q) SeldenV Marc Claufum. Ed. Eng. Wendover, And well defervts to he looked 

Fol. ]. 2. c. 15. p. 2p6. The Chronicles on as fabnloiii. 

fet forth hy Matthew Paris were wholly P. 243. We have dn incredible Story of 

taken optt of Roger of Wendover, until King John'; fending a private Meffige to 

the jpth Tear «/ Henry III. the King of Morocco, to offer him his 

(r ) It may not be amijs to give the Kingdom, and affure him he would re-' 
Reader a Specimen of fome of thefe Inter- nounce the Chrijlian Faith, and embrace 
polations, that he may be the better enabled the Mahometan Religion. A Piece of 
to judge of the re jl. P. -jS. M.Paris tells Hiftory to be found in no Author hut M. 
us. That Maud, nho was married to Hen- Paris ; Wendover knew nothing of it^ 
ry I. had been educated in a Monaftery, mither k it mentioned hy Matt, of VVeft- 
%vhere fhe had vowed Virginity, and was minfter, (the Trmfcribcr of M. Paris) 
reported to have taken upon her the nor even by M. Paris himfelf in his Hi- 
Veil ; for which Reafon Ihe was mar- floria minor ; for which Reafons, as well 
ried againft her Will ; and therefore fhe as others. Dr. VVatts thought he had rea- 
folemnly curfed her Iffue, if ever fiie fin to rejeR it. Vide D. Watts Adverfa- 
fhould have any, and commended them ria ad Matth. Paris, ad p. 243. 
to the Devil. Now this Pajfage is want- Thefe Inftances may fcrve to/hew, what 
ing in Wendover ; and we know it to be Liberty M. Paris took in his Infertions, 
falfefrom the Authority o/Eadmerus, who «nd how little they are to be trufted. 
confutes it at large. ( / ) Excaecari cum baiillo ardenti, 


Crovjn of England affert'ed, &c. 41 

applied to them. [H. Knighton, de Event. Anglide, 1. •a. c. 8.] 
Kovv fo remarkable a Puniihment inflicted on lb emi' 
nent a Perlbn, as Robert Duke of Normandy^ the King's 
elder Brother, could not lurely be a Secret to all the 
Writers, who flourifhed at that Time ; and had it been 
known to them, undoubtedly they would not have 
failed to give us fome Account of it. But to our great 
Surprize, inftead of allowing any Countenance to this 
Story, they relate the quite contrary, (t) Will. Gem- 
pieticen/is fays, Robert was a Prifoner at large to the End of 
his ]^ife. fwj Oriit?ric«j- FzY^/i J affirms, That he was fup^ 
plied abundantly^ during the Twenty Seven Tears of his Im^ 
prijonment^ with all manner of Delicacies. William of Malmf- 
burys Account is (till more circumfl:antial ; for he (.r) af- 
fures us, That Duke Robert being taken by King Henry, 
was kept by him as a Prifiner at large to the Day of his Death , 
and this., he fays, was a laudable Injiance of Henry 'j Bro^ 
therly Affection ; in that he infli&ed no other Punijhment on 
Duke Robert, bejides Solitude ; if that may be caltd a foH- 
tary State.^ in which he was always attended with Company ; and 
bejides^^ was frequently entertained with Feafis.^ and other Di" 
'verjions. \ am perfuaded, thefe Paflfages are very clear 
and plain ; and upon their Authority I fhall prefume to 
fay, that thofe Tragical Relations of DxxkQ Roberts being 
deprived of his Sight, by King Henrys Order, are by no 
means to be credited. 

I N o w flatter myfelf^ I have faid all that is necefla- 
ry, in Vindication o^ Henry l.'s Title ; for I know not 
how to imagine, that Edgar Atheling fliould be any 
more objefted. He had before yielded up the quiet 
PoflTeffion of the Crown to Three Kings; and therefore 
it is not likely, he fliould have any Stomach to it in this 
Reign. The Truth is, he had for fome time liv'd with 
fo much Privacy and Obfcurity, that we (y) hardly meet 
with his Name in the Hiftories of Henry l.'s Govern- 

( t ) P- 298. foHtudo dici poflir, ubi & Cuftodum di- 

(«) Ordericus Vitalis, 1. II. p. 823. ligentia, & jocorum praeterea, & obfo- 

Rex Henricus 27 annis fratrem Rober- niorum non deerat frequcntia. 

turn in carcere fervavit, & omnibm de- (y) The Saxon Chronicle (ad A. D. 

liciis abandantlr pavit, 1106.) fa'ys, Edgar was taken Prifoner 

(x) Will. Malmsbur. de Geft Angl. nhh Vuke Robert at the Battle of Tcner- 

J. 4. de Hen. priitio, in fine. Rdbertus chebrai. Et Anrial. Waverl. ad A. D. 

D- NormannijB u fratre Henrico caprus, 1 106. ^nd this, I heluve, is the only 

ad diem mortis in libera tentus cufto- Account we meet of him in Henry the Firjf'i 

All ; laudabili fratris pietate, quod ni- Reign, 

hil prxtei folitudinem paffus fit mali, fi 

M iiient * 

41 The Hereditary Right of the 

ment ; and had not Malmshmy told us, he was in Bein^ 
when^he wrote; we might well have believ'd, he had 
long before refign'd his Breath, as well as his Title. 

King Stephens Reign follows in Order ; in which 
furely, if any where, we may expeft to find fome plain 
and legible Charaders of the Exiftence and Operation of 
the Dodor's Principle : For Stei^hen was indeed a King 
de Fa&o^ without any Title, but what he derived from 
Pofleffion. The Kings, that were before him, had ei- 
ther the Will of their Predeceflbrs, or the Ceffion of the 
Right Heirs^ to render their Reigns Lawful ; but Stephen 
tvas an errant Vfurper. He (z) had fworn to the Succef- 
fion of Maud the Emprefs; and he knew that (a) all the 
Nobility and Prelates had done the fame; and therefore 
as he had obtained the Crown by Perjury^ he could not 
otherwife keep it, than by Arms and Violence. It is (b) 
reported indeed, that King Henry^ when he lay a dy- 
ing, difinherited his Daughter Maud^ and declared Ste- 
fhen his Succeffor; and by this Artifice, it is faid, the 
Archbijhop was prevailed with to crown him ; but the (c) 
Doftor has thought fit to rejed this Story, as incredible ; 
and {d) I am very willing to agree with him in that 
Point ; provided it may be allowed to be a farther Con- 
firmation of the ancient Cuftom of the Kings of Eng- 
land, to name their Succeflbrs; for otherwife that Re- 
port muft have been ufelefs and infignificant; and could 
not poffibly have ferved the Purpofe, for which it was 
intended. Thus far therefore I have the good Fortune 
to be of the Doctor's Opinion ; but that Happinefs is 
not like to continue long ; for I muft now take the Li- 
berty to tell him, that King Stephens being an Vfurper^ 
will be of no manner of Advantage to his Cauie, that 
I can by any means perceive. He was advanced to the 

Cz.) W.Malmsbur.Hift. NoveD. 1, i. 

p. 100. 

CaJ W, Malmsbur, ibid. Roger. Ho- 
veden, p, 481. Gervaf. Dorob. j.Bxomp- 
ton, &c. 

(bj Rad. de Diceto Abbrev. Chron. 
p. 505. Et Gefla R. Stephani, p. 5?2<?. 

Cc) Defence, p. 18. 

(dj W. Malmsbur. Nov. Hift. 1. i. 
fays expre/ly. That King Henry I. vehen 
he lay a dying, interrogatus a Roberto 
CoHiite Gioceflrise de Succeffore, Rex 

filise omnem Terram fuam citra & ultra 
mare legitima & perenni fucceflione ad- 
judicavit. Et Hift. Nov. 1. 2. He fays , 
Henry Bifhop oj VVinchefter (King Ste- 
phen'j Brother) own'd pfiblidly m a jull 
Synod, qu6d Rex Henricus nonnuUis 
ante obitum annis filiae fuse quondam 
Imperatrici omne regnum Anglia:, limul 
& Ducatum Normannise, jurari ab om- 
nibus Epifcopis fimulque Baronibus fe- 
cerir, fi fucceffore mafculo ex ilia, quain 
Lotbaxingia duxcrat, uxore caraet. 


Crowi of England averted, 6cc. 45 

throne by the (e) Bifhops ; and confirm*d in It by the ro The Bi. 
Pope : And Ibme of the Writers of thofe Times (f) fpeak |';/'^j^j;''| ^' 
of it with Admiration, that in an Inliant all England be- that he via: 
came fubjeB unto him. But we muft diftinguiQi between eaScepinoli 
thofe, that advanced him to the Throne, and thofe that "^"4 '"''^" 
only obeyed him, and fwore to him, when he was in it. num promo- 
The firft Sort are exclaim'd againft by the forementioned ^JJ^^'j^^j^f. 
Hiftorians, (in the Places cited) as unrighteous and per- bur. Hifi. 
jured Men ; and they obferve to us, that therefore the ^°''' '" ^' 
Arcbbijhop of Canterbury^ by the juft Judgment of G o d, ^^^vldcnf ' 
did not live a Year after; and the Bijhop o^ Salisbury^ v-^"^^- Et 
by the fame Hand of Providence, ended his Days very p.^i'^^^j^^""* 
miferably. And the Dodtor hirafelf is fo far from jufti- 
fying fuch Anions, that he will freely give us Leave to 
account it a Crime, to fet up a King de FaEio ; though 
he contends for Obedience to him, when he is already 
made. The Queftion therefore is, concerning thofe a- 
lone, who fubmitted to his Government, and acknow- 
ledg'd him for their King, after he was placed in the 
Throne ; thefe, the Doftor is of Opinion, cannot be 
defended by any honeft Principle, befides this, That AU 
legiance is due to a King in PoJfeJJion. But if this was 
really the Cafe, why have not our Hiftorians done us 
the Favour to let us know it ? Why was fo ufeful an 
Expedient, upon fuch Occafions, and Exigencies, con- 
ceal'd from Pofterity ? Or is there any Hint to be found 
in the Writers of thofe Times, that may help us to the 
DIfcovery of fo valuable a Secret? Unkind and III' 
natur'd Hiftorians ! You that pretended to write for the 
Benefit of future Ages, how could you fuflfer us to be 
ignorant of a Dodrine, that had done you fo much Ser^ 
vice, and without which we can never be ti-uly fenfible 
of the Bleffing of a Revolution ? In a wordy they have 
^ been pleas'd to publilh fome of the Reafons, by whicli 

the great Men endeavour'd to juftify their Submiftion to 
Stephen', which muft increafe our Wonder very muchy 
that the Do6tor's Notion (hould find no Place among 
them, had it really been known and made ufe of. (g) (g) GeRn 
Some affirm'd, that their Oath to Maud was forced up- ^'/jpf''^"' 
on them by King Henry; for which he exprefs'd his 
Sorrow on his Death-Bed, and releas'd them from it.. 
The great BiJ/jop of Salisbury {h) excufed himfelf in ano- a)WMaim; 

ther Manner ; for he pretended, that he (wore to Maud's p^-No'- 

Si. 1. 

44 T'he Hereditary Right of the 

Succeffion conditionally, 'viz. Provided that the King did 
not marry her out of the Kingdom^ without the Confent of the 
Peers. Others (i) alledged, it was unnatural, and againft 
tlie Laws of the Realm, for a Woman to reign : And 
laftly, it was (^) urged, that Oaths were not to be kept 
to the Hazard of Peoples Lives and Fortunes ; for Man not made for Oaths ; hut Oaths were inftituted for ths 
V/e of Aien ; and therefore no Man ought to be a Slave to his 
Oath ; but his Oath ought to be fubfervient to his Intereji and 

These (I) Reafons, fuch as they are, may be found 
in the Writings of thofe Times; particularly in the 
Caufa Regis Stephani^ an ancient Manufcript in the Cotton 
Library^ drawn up put^pofely in Defence of that Prince 
againft Maud the Emprefs ; and therefore it is not to be 
tonceiv*d, fo ufeful a Principle, fo effential, as the Do- 
dor thinks it to the Conftitution, fhould have been 
forgotten upon that Occalion, had its Influence and 
Authority been fo well underftood, as he imagines : On 
the contrary, if we take an impartial View of this Reign^ 
we ftiall meet with many Arguments to convince us, it 
Was a Dodrine never thought of in thofe Times. That 
I may fully fatisfy the Reader in this Point, I (hall de* 
fire Leave to obferve to him, F/Vy?, That there never 
was a more unquiet and tumultuous Reign, than Ste- 
phens was, upon the fole Account of his being an Vfur- 
fer. And, Secondly.^ That they who adhered to him, 
did not believe it to be their Duty fo to do, purely be- 
caufe he was in Pofleifion. Firft., I lay there never was 
a more unquiet and tumultuous Reign, than this of Ste^ 

( i ) Matth. Paris, p. 74. Omnes, mentum fummopere fit obfervandum, 

tjm Prxfules quim Comites, qui Filiae non ufquequaque immobilitcr eft te- 

Kegis, & fuis hxredibus juraverant Fi- nendum, ut nulla ex causa foivi debeaty 

delitatem, confenfum Stephana pnebu- cum & Divinae Legis inftituta quxdam, 

erunt ; diccntes, fore nimis turpe, ft tot pro tempore, urgeiite neceflitate, tranf- 

J^obiles Famime Jubdtrentur. Et, Caufa gredi liceat. Non homo propter juramen- 

Regii Stephani. MS. in Bibl. Cotton. t«m, fed juramentum propter hominem efi 

Galba, A. 3. 2. Muliebris fuperbix eft inJiitHtum. Et idea non homo jtiramento, 

& temeritatis, ad id quod non eft fui fed juramentum homini, & ejuifaltttifitb- 

juris vel ordinis, adfpirare, quam Natu- fervire debeat. 

ra, Sexus iniirmitas dehortantur regni ( / ) The Bifl^op of Winchefter gme 
laboriofa moderamina appetere. Legi- another Reafon, mhy Stephen his Brother 
bus viros coercere onus grave eft, quod was rectiv'd as King. C^uia longum vi- 
viriles humeri vix fufticiunt portare. debatur Dominam expefrare, qux mo- 
Quid indecentius , quid inhoneftius , ras ad vcniendum in Angliam neflebat, 
quim viros a muliere imbecilla guber- (in Normannia quippe refidebat) provi- 
iiari, & a fuo Rege deftitui ? fum eft Pact Patriae, & regnare permif- 

( i ) Giufa Regis Stephani in Bibl. fus Prater meus. W. Malmsb. Hift. 

Cotton- ibid. Et tamen quaravis jura- Nov. 1. 2. 

% phen ; 

Crovin oy^" England afferted, &c. 4*5' 

^hm ; which miift be confeffed by all, who have perufed 
the ancient Writers of Hiftory ; and whoever doubts of 
it^ will be eaiily convinc'd, by the (m) Places cited in the 
Margin ; where the Miferies the Kingdom endured by 
thofe Civil Wars, for near the Space of Fifteen Years, 
are very fully reprefented. In the (n) Second and Third 
Years of his Reign, the Commotions firft began ; and 
then Robert Earl of Oloucefler declared for Mmd againft 
him ; and at the fame tirne many (0) Prelates, and Per^ 
fons of the greateft Quality, in feveral Parts of the King- 
dom, take up Arms for the Emprefi. In the midft of 
thefe Confufions at Home, (p) Normandy provides itfelf 
with a new Mafter Abroad ; and Da'vid King of Scotland 
takes care to invade the Borders in her Quarrel. The 
Year (q) following, Maud the Emprefs lands in England, 
and was immediately affifted by the Weljh^ under the 
Earls of Hereford and Chefter ; by whole FideHty and 
Condud: fhe was foon in Condition to give Battle to Ste^ 
phen^ in frj which fhe took him Prifoner. It is true, by 
a Reverfe of Affairs, he recover'd his Liberty before the 
Year expired ; and fancied himfelf powerful enough to 
reduce the Kingdom entirely to his Obedience. But 
that Piece of good Fortune added only Length, not any 
Quiet to his Reign ; for his Enemies continued ftill in 
Circumftances to difturb his Government; and never 
laid down their Arms, till they had obliged him to 
agree to a Compofition with Uemy 11. which did not hap- 
pen, till the laft Year of his Reign. Is it not then rea- 
fonable to expoftulate with the Dodor, why he (Iiould 
imagine, this Prince's Cafe could be ferviceable to his 
Defign ? He was to prove the Right and Authority of 
Kings de FaBo^ from the Acquiefcence and Submiffion of 
the Subjeds ; but Stephen was never permitted to enjoy 
any Peace and Quietnefs, that deferves to be taken No- 
tice of ; becaufe a great Part of England would not endure 
him for their King. Surely an Inftance more prejudi- 
cial to his Purpofe, could not eafily be thought of; for 
if Examples have any Influence over the Adions of 

(w) Gefta Regis Stephani, p. 95i. (o) Ord. Vitalis, ibid. p. piy. 

W. Malmsb. Hift.'Nov. 1. 2. Heu. Hun- {p) Ord. Vitalis, 1. 13. p. 902, p22. 

tingdon. 1.8. Et W. Newbiigenfis. & (q) A. D. 1139. Ord. Vitalis, p.920, 

Chron. S,ixon. ad A. D. 1137. p2i. 

(«) A. D.u 38. Od. Vitalis, 1. 13. (r)A.D. 1141. 

p.pi6,J?ip. -r, . 

N Princes, 

4^ the Hereditary kight of the 

Princes, tione can more effectually deterr them froni 
ufurping on one another, than a Reflexion upon the 
many Troubles and Difficulties Stephen was forced to 
ftruggle with. The two firft were the only Years of his 
Reign^ which were free from the Calamities of War i 
in which refpeCt the whole Nation is {t) faid to have 
fubmitted to him, and own'd him for their King. But 
what was this Submiffion ? Even fuch a one, as is made 
to Torrents and Inundations, when they cannot be re- 
filled : And for the fame Reafon, every fudden and 
powerful Invafion may be thought to be approved of, 
when it is not oppofed. Stephen^ by the Affiftance of a 
potent Party in England^ feizes the Crown, whilft the 
true Heir is in a diftant Country, and her Friends were 
wholly unprepared to aflert her Right. In thefe Cir- 
cumftances they comply with the Ufurper, and promife 
Fi4elity to him. But did they believe this to be their 
Duty ? Did they aft herein upon the Doctor's Princi- 
ple ; viz. That PoffeJ/ion made him their Lawful King ? No 
certainly ; the contrary is moft evident : For no fooner 
did the Emprefs arrive in England^ and demand the 
Crown as her Right ; but (t) they immediately repair'd 
to her, notwithftanding their late Engagement to Ste^ 
pben ; and ferved her afterwards with untainted Loyal- 
ty, till they had fecured the Succeffion to her Son. Ve- 
ry true, fays the Doctor ; but herein they were guilty of 
z Revolt ; they aded againft their Oaths to Stephen ; and 
ought to be look'd upon as Rebels. This is a very hard 
Cenfure ; not only without Proof, but againft the Faith 
of Hiftory ; which affures us, that thofe that quitted the 
Party of Stephen for that of Maud^ did it upon this 
Principle, That their firft Oath to her remained ftill in 
Force, and could not lofe its Obligation by their fubfe- 
, quent Oath to Stephen. This appeared in none fo remarka- 

(/) R. Hoveden, p. 481. fex : Baldwin dc Keivtrs held Exeter 

( t ) Tho. W'ikes Chronicon, ad A.C. Md the Ifle of Wi^hiagainfi him. Hugh 

J 158. Proceies quoque regni, quorum Bigod, theCuftle 0/ ^5orwich. Jeffery, 

unmus jurisjurandi tranfgreffione vacUla- fnrnamed Tziehot, the QSle of Herefoid; 

i/it, provida deliberatione libi concilia- William de Mohun, that of Diinfter ; 

tat, fc. Matilda Imperatrix. William Louvel, Caftle-Caryj ^.nd Pa- 

Jt may not he amifs to fsi dtrvn the ganellus, Robert de Nichole, Euftachius 

jJNames of the thief Nobility, who declared nlius Johannis, Willielmus filius Alani, 

. T^ /or Maud t/je Emprefi, and adhered to her defended the Gtflles «/ Ludlow, Ware- 

, Intereft, notnithlianding their Oaths to ham, Mclhunc, and Shrewsbury j be- 

'Stephen; w*. Robert f^jW o/Glocefter, fides fever al others. Vide H. Hunting* 

tht EarU of Chefter, Hereford, a^i if- doi^ 1. 8. Oid. Vitalis, &c. 


CroTon of England ajferted, &CC, 47 

ble, as in Robert Rarl of Gloucefler^ Natural Son to King 

Henry I. who juftified the Aniftance he gave the Em- 

prefs, chiefly upon («) this Reafon, that he had been [worn 

to her ; and therefore was bound in Conjcimce to ferve her 

againft Stephen. Now it muftbe granted, this had been 

a poor and wretched Evafion, unworthy of Countenance 

from Perfons, that pretended to Honour, and indeed com^ 

mon Senfe; were the Doftor's Notion of the Engli/h Con- 

ftitution true, and had it been generally received in 

thofe Times : For then their Duty to the King in Pojjfef- 

fion would have cleared all Objections, and removed e- 

very Scruple, which could poflibly arife from the Con- 

fideration of their Oath to the Emprefs ; and whatever 

Attempts had been made to place her in the Throne, 

would have been fo many Invafions of the Lavps of their 

Country. Well ; but if the Nobility were bound by 

their Oaths to Maud, we muft condemn them for taking 

one to Stephen ; which the Dodlor thinks is a {x) fever e 

Reflexion on our Anceftors ; becaufe we muft then fay, they 

either did not underftand their Vuty^ or did not pra&tje it* 

But how can we help it, if our Anceftors were guilty of 

fome Adtions, which cannot be defended or juftified? 

Were they the only Sinners in the Univerfe in that re- 

fped: ? Or is it a Shame for us to confefs, what we can 

never hope to conceal ? Faulty we are fure they were 

upon one Account or other, either in fwearing to Ste- 

phen.^ or in revolting from him ; and therefore, fince it is 

not poffible for us entirely to acquit them of both thefe 

Actions ; the beft Service we can do for them, is to (hew 

they were forry for the Crime they had committed, and 

endeavoured to atone for it by their fubfequent Loyalty : 

And for this we have the Teftimony of the Writers of 

thofe Times, who tell us, that thofe who departed from 

their Oaths to Stephen .^ when the Emprefs landed, did it 

for no other Reafon, but becaufe they thought they were 

bound to it in Confcience. That this was the {y) real 

Motive, upon which Robert Earl of Gloucefier declared 

War againft Stephen., I have already obferv a ; and muft 

therefore wonder, how it cametopafs, that the Doftor 

( « ) Will. Malmsb. Hift. Nov. 1. 2. modo eum poffe fine ignominia vitara 

(x) f^ievf of the Engl. Gnfi. p. 6, 7. prsefentem traiifigere, vel mereie teatitu- 

(y ) Animabant nimirum mentem e- dinem futura, fi paternx neceifitudini* 

jus multorum Religioforum refponla, Sacramentum irritum haberet. W. 

quos fupcr negotio confuluerat : nuUo Malmsb. Hift. Nor. c. i. 


48 The Hereditary Right of the 

fhould make this EarTi Oath to Stephen^ an Argument 
for the Support of his Caufe ; efpecially, conlidering, 
that the Hiftorian, who is moft to be depended on in 
this Point, has affign'd different Realbns for that Noble- 
man's Conduct, throughout this Affair, (z) He tells u?, 
That Robert Earl of Gloucefier was v/ith King Henry in 
Normandy^ when that Prince died ; and that he did not 
come into England^ till fome Months after Stephen had 
been crowh'd. (a) He fpeaks of it, as a Matter well 
known to him, That Robert deliberated with himfelf for 
fome while^ what Courfe he Jhould fleer in the Difficulties^ 
which then furrounded him ; for he faw plainly^ that he could 
not yield himfelf a SubjeB to Stephen, without 'violating his 
Oath to his Sifter ; and on the other hand^ Jhould he refufe to 
make his Submiffion to Stephen, he Jhould not only be incapable 
of doing the Emprefs and her Son any Service^ but ezpofe him- 
felf to great Dangers and Incomjeniencies. For Stephen be- 
ing now Mafter of thofe immenfe Treafures^ which King Hen- 
ry had been hoarding up for many Tears ; and being withall 
"very liberal^ not to fay prodigal^ in his Temper ; it could not 
be avoided, but he mufl be very formidable, by the great Qua- 
lity, as well as Number of his Adherents ; and therefore it 
would be in vain to think of oppojing him at prefent, by open 
Force and Violence. It was necejfary therefore for the Earl to 
dijjfemble his Intentions for fome while, and confequently to do 
Homage to Stephen ; which he performed under this Condi' 
tion, that no Injury was offer d to his Honour and Dignity, 
and the Promifes made to him were kept inviolably. 

Thus we fee William of Malmsbury abandons his 
Earl (for whom he had otherwife a particular Efleem, 

(i) Will. Malmsb.Hifi. Nov. c. i. fus, & (quod minimb Principem decet) 
( a ) Idem ibid. Eodem anno poft Prodigus. Currebatur ad eum ab om- 
Pafcha, Robertus Comes Glouceftrix ve- nium gentium MilitibuS, & a levis ar- 
nit in Angliam, cujus prudentiam ma- maturae hominibus, &c. — Et jam Pro- 
ximl- Stephanus verebatur- Is dum eflet ceres Angliar in ejus aflenfnm proiiis 
in Normannia, multa cogitatione fati- mentibus tranfierant. Erat quidem aft- 
garat animum, quidnam fibi fnper hoc xius Piudentiffimus Comes, ut iJlos de- 
negotio flatuendum putaret. Si enim liiSi argueret , & ad faniorem fenten- 
R. Stephano fubderetur, contra Sacra- tiam prasfenti colloquio revocarct. Nam 
mentum, quod Sorori fecerat, videbat viribus obviate nulla, propter prafatas 
fore : fi refragaretur, nihil Sorori vel caufas, dnbatur facukas ; cui nimirum 
Nepotibus profuturum, fibi certfc im- nee in AngKam venire liberum erat, nifi 
maniter nociturum intelligebat. Habc- quafi defeiHionis eorum particeps, men- 
bat enim Rex iramenfam vim thelauro- tis fua: arcanum ad tempus diflimularet. 
rum, quos multis annis Avunculus ag- Itaque Homagium Regi fecit, fub coi>- 

fefferar, &c. banc copiam gazarum ha- ditione quadam, Icilicet quamdiu ille 

enti auxiliatores deeffe non poterant : dignitatem fuam integrli cuHodirct, & 

prsefertim cum effet ipfe in dapdo difFu- libi padta fcrvaret, &c, 


Cronvn of England ajferted, &c. . 49 

and Honour) to the Courtefy of his Reader, without 
any Apology for his Submiffion to Stephen^ but what a 
Regard to his Intereft, and the Neceflity of Affairs could 
help him to. He fays, he was refilvd to keep his Oath to 
his Sijier^ and do what he could for her Sermce^ even at the 
Time he fwore to Stephen; that is, {b) he defired to be (h) Wiii. 
thought one of her Enemies^ that he migfit the better S"'Quafi 
a6t the Part of her Friend. And is it not then evident, defeaionis 
that this Earl of Gloucejier could not poffibly a61; upon the tkep^men- 
Dodor's Principle? For by Vertue of that, his former Jjy^"*j^g^. 
Oath to Maud would have been abfolutely void, and of pusdiffimu- 
no Obligation ; but he declares himfelf of a quite con- ^^^^^' 
trary Opinion in this Part of his Management : He be- 
liev'd he could not be releas'd from his Oath to his Sifter, 
even when he took one to Stephen ; and did not pretend 
to juftify his Fidelity to her, upon any other ConfideraK 
tion. It is apparent therefore, that his Example is by 
no means to be imitated, becaufe not to be defended ; 
for by the Confeffion of his greateft Admirer and Advo- 
cate, he was guilty of manifeft Perjury : But then I hop^ 
the Doctor will not take it amifs, if I think him very ex- 
cufable, for what he did afterwards, in Favour of his Si- 
fter; for furely, if he believ'd himfelf bound by hii 
Oath to her, he had Reafon to promote her Intereft uport 
all proper Occafions, and to do his utmoft to place her 
in the Throne. 

Let me add farther, as an evident Proof, that the 
Dodtor's Principle was not uaderftood and approved of in 
thofe Times; that (c) Dauid King of Scotland^ though (0 Sim. Da- 
reduced to great Difficulties by his Adherence to the Em- ?in'!"p. 2T2. 
prefs, could never be prevail^ with to renounce his Oath Fidedignum 
to her, and take a new one to Stephen ; infifting upon it bitSnTs'^iftr 
to the laft, that he was obliged to the inviolable Perfor- ^^"^P'^ "f 
mance of it. Now had it been the current Doctrine of aamemo/ 
that Age, that whoever was in full Pofleffion of the g;,fjE« 
Throne, was to be obeyed ; he would have been fenfi"- Henrid Re-, 
ble of the Injuftice and Folly of expofing himfelf to ^"* 
Dangers, for a Lady, whofe Claim to his Service imme- 
diately ceafed, from the very Moment her Adverfary had 
made himfelf entire Mafter of England. 

And now I may appeal to the impartial Reader, 
whether any Inferences can be juftly drawn,, from what 
I h^ve hitherto oblerved, that can encourage the Dodor 

O to 

^o The Hefeditary Right of the 

to hope for Affiftance from this Reign. Great Nam- 
\ers (fays he) of the Nobility^ the Clergy <?ni People of 
England fuhmitted to Stephen ^ and fwore Fe'ahy tp him 
as their King ; but ^reat Numbers jikewife of the Nobi- 
lity, fyc. who had thus fworn to him, foon after took 
up Arms againft him, as an Ufurper. So that here is 
Fa£t againft Fad:, and Example againft Example 5 and 
theQueftion is, which of the two is to be regarded, as 
moft juftifiable, and worthy of imitation; If we are to 
believe the Dodtor, Allegiance was doe to Stephen ; and 
therefore they only were good Subjeds, who kept their 
Oaths to him, and the Breakers of them Rebels • but his 
Adverfaries are of a contrary Opinion ; for they think 
it more reafonable to affirm, that the Oaths taken to him 
were unlawful ; and upon that account they highly ap- 
prove of the Behaviour of thofe, who abandon a Stephen 
for the Sake of Maud. This U the true State df the 
Controverfy^ as it prefents itielf to us from th? View 
we have hitherto taken of Stephens Reign ; and confe- 
quently we are yet to feek for the Satisfadion promifed 
from it. , , 

And the Mifchief is, the farther we carry our En-' 
ijuiry into the Hiftory of this King,- the more we find 
our Expe(ftations difappointed., Stephen^ in the Sixth 
Year of his Reign, u^as taken Prifoner at the Battle of 
Lincoln ; and then the Emprefs, being Miftrels of his 
Perfon, feem'd to be fo of the Kingdom too ; the BifhopS 
at leaft, and the whole Ecclefiaftical State, were of this 
Opinion ; for they (d) immediately took care to make 
ihck Peace with the Emprefs; fwore Fidelity to her, and 
(e) excommunicated all that adhered to Stephen., So farj 
it muft be confefs'd, the Doctor may have Reafon to be- 
lieve his Caufe prosperous ; and the Truth is, the grea^ 
Biftiop of Winchefier urged it as an Argument to the 
Clergy, why they fhould fwear Subjedion to the Em* 
prefs ; 'viz: (f) becaufe the Kingdom would be in Danger^ if 
there was no Governor. So that it was the Publick 

(<i} \V. Malmstur. Hift. Nov. 1. 2. this CoHtJcil ; and tbM not only all the Bt- 

Fnvocata itaquc primo,' ut par eft, in au- /hops wtre ajfembled in it, hut alfo mary 

ixilium Divinitatc, filiam Pacifici Regis c/ the yihbots and ^rchdtacons. 

(fc. Matildam Imp.) in Anglix Nor- ( * ) W. Malmsbur. ibid, 

ihannizque Dominam cligimus, & ei {/) W. Malmsbur. Hift. Nov. 1.2. 

fidem & manutencmcntum promitti- Ne Regnum vaciUtt, A Regnante ca^ 

trntt. Ma]msbur]r/4^Jj he vas prtjtnt 4t leat. 

CroWt ^/"England afferted, &c. ft 

Good, arid Neceffity of Affairs, that brouglit, them t^ 
this Compliance 5 which is all the Do<flor contends fpq 
But 1 muft beg. Leave jto pbferve to him, that before thi? 
Council was affembled^ the f^), Archbifhop of j^anterbitrj/ 
being folicited to make his Submiffion to^ /ilaud^ an4 
own her Title> made, Anfwer;j That he coi^ld not da it with 
Honour^ till King Stephen had released him from his Oath of 
Fealty he had tdken to him ; arid therefore he^ and many of 
his Prelates^ with foiiie of the Laity ^ took a journey to the 
King^ to conferr with him u^on that Affair; who gave his 
Confent^ that they Jhould yield to th^NeceJityofthe Times. 
Thus it is evident, they did not think themfelves at Li- 
berty to turn over their Allegiance to Maud^ till they 
were admitted to do it by Stephen; to which alone that 
unanimous Recognition of her Title in the Synod of 
Wimhefier^ which preferitly after enfued, is to be impq- 
ted. Is it not then apparent, that the {h) Dodor's Prinf 
ciple had nothing to do in this Tranfa^lion ? for, that 
would have operated immediately, as foon as Maud was 
in Fojfejfion^ without any Hefitation or .Delay j and the 
Archbifhop would never have given himfelf the Trott- 
ble of a Journey to Stephen^ to ask that, which the Con- 
ftitution of the Kingdoni obliged him td. Befides, if the 
Example 0^ the Prelates^ ind the Clergy of this Reign,- 
is to prefcribe tp Pofterity ; it will not only be lawful tpf 
fwear to every Prince in Poffeffion^ but to defert; him top^ 
whenever an , Opportunity offers j fpr within a few 
Months after this folemn Promife of Fidelity to the Em- 
frefs, made in a full Synod, the good Bifhop of Winche- 
fier^ finding his Brother's Party to be in a Condition to 
make Head againft the Emprefs^ takes an Occafion of 
quarrelling \vith her; defeats her little Army at Winchk' 
Jier; and obliges the brave Earl of Cloucejier to furrender 
himfelf a Pfifoner. The Cohfequence of whicih Vi6io- 

(g) PauCis poft diebus Theohaldus teoi uptn her the Title of Ciueen ; hitt ei- 

CAMuarU Archiepifcopus venit ad Im- ther retained that ojEmprefs, or elfe c/il/ei 

peratricem ; difiulii fAne fidelitatem Do- herfilj Domina Anglorum, the Lady of 

tninte factre ; inconfulto Rege tlias diver- t he hir^lifh ; M Appears from our Hijtoriejy 

tere, farud & Perjond j»<e indignum arbi- And ftveral tf her Charters fiill extant, 

trattu. Itaque & Jpje- & Plerique Pra- And yet the Great Council of the Kifig-^ 

fulesy cum aliquantia Laicij, permifli ad dom mnd her Title, ?.nd fnore Fealty to 

Jlcgem ire & colloqui, dignajiu'rquc her : Which fhews, the Dctlor u mifiakerty 

impetrata vefiia, ut in necefiitatem tern- ( Vind. p. io6, ) vhen he affirms, in the 

porii tranlirent, in Sententiam Legati Cafe of Cromwell, that by the ConftitHtien: 

ceflcre. W. Malm»b. Hift. Nov. ]. 2. of our Monarchy, he pho had net the Royal 

{h] It may be fit here to obferve, thai Title^ could not have the Legi/lative Ah- 

Mand, ifhen Jbe mas in Poff'ffion, mvtr thtrity. 


5'i ^'^he Hereditary Right of the > 

ty v(rdfe'|'tt^^ttI^^£!;^f^/riV«§ forced 'to give Stephen \m 
Liberty, that her Brother might obtain his; and this 
tvas no fooner done, but the whole Body of the Clergy 
aflemble again ; by the Authority of the Legate, (i) it* 
Voke all their Promifes and Oaths to Maud^ and fwear a- 
freih to Stephen, (k) What muft we now think of this 
nimble Change in the BiQiops ? Was this effefted too by 
the Doctor's Principle? Certainly no: For the mutual 
Enlargement of King Stephen^ and the Earl of Ghucefler^ 
tvas agreed to upon (/j thefe Terms ; That Maud /hould 
keep the Lands and Caflles Jhe vpas then in Vojfejfion of; and 
both Jhe and Stephen might defend their Fretenjions ai well as 
fhej xvere able. So that England was then {m) divided be- 
tween them ; and either we muft fay, they were both ia 
PoffeJ/ion^ or neither. If Stephen was King de Fa&o of his 
Part, fo was Maud Miftrefs de Fa&o of Hers ; and there- 
. fore thofe Bifliops, whofe Diocefes were in her Divifion, 
could never juftify their taking Oaths to Stephen^ upon 
the account of Pojfejion. The Truth is, though thefe 
Bifliops did all along favour the Caufe of Stephen^ before 
that of Maud', yet at the latter End of his Reign, they 
plainly made a Diftinftion between him, and a King de 
Jure; for being th^rl, in a general Council, (n)requefted 
by him, to confent to the Coronation of his eldeft Son 
Eufiachids^ in order to defeat the Defigns of Prince Hen- 
ry; they peremptorily refufed to gratify him in this 
Point; alledging for their Excufe an exprefs Prohibi- 
tion, which they had received from the Pope, who would 

■jiC*) W. Malmsb. Hift. Nov. 1. 2. duxerunt earn in O.wnford, & in ejus 

(^k) W. Malmsb. fays liierrife. They poteftate oppidum pofuerunt. 
tA:commuaicated all that adhtred to Maud. (" « ) Gonvocato apud Londoniarti 
Ibid. Generali Concilio, Theobaldo fc. Archi- 
( / ) W. Malmsb. ibid. Ad ultimum cpifcopo Cant. Epifcopis quoque & 
eo modo res ventilata, ut aequis conditio- Proceribus Angliae, ptopofuit animo fi- 
nibus & Rex & ipfe abfolveretur ; nul- liura fuum Euftachium regie Diade- 
lo pafto alio ihterveniente, nifi ut quif- niate irjignire, & de jure debito & ju- 
que partes fuas pro poffe, licut prius, tu- rato Henricum praevenire, & penitus 
latentur. Et pag. fequ. Turn deraum privare. Poftulatus a^utem k Prxdi£lo 
Kobertus aflenlit ; itk tamen, ne quic- Archiepifcopo & cseteris Epifcopis, quos 
quam Caftellorum vol terrarum redde- ibidem congregaverat, ut Euftachium 
retur, quod port Regis captionem in jus filium fuum inRegem ungerent, & bc- 
Imperatricis, vel quorumque fidejium ncdiftione fua contirmarent , rcpulfem 
ejus tranfierat. vehementer indoluir. Dominus fiqui- 
(w) Chron. Saxon, ad A. D. 1140. dem Papa literis fuis Cantuarienfi pro- 
Tune fuit Anglia multnm divifa : non- hibuerat Archiepifcopo, Jie filium Re- 
nuUi tuebantur partes Regis, noniiuUi gis, qui contra jusjurandum regnum ufur- 
Imperatricis ; cum enim Rex erat in paffa videbatur, in Regem fublimaret. 

. Carcere, opinati funt Comites & fommi Hen. Huntingdon, p. 595. Gervaf, Do- 

Viri,eumnunquam iri liberatura; ide6- robcrn. p. 1371. 
que foedei? faito cum Imperatrico, de- 


X Crow/J 0/ England affened, &c. 5*3 

by no means permit, that the Father^ who had obtain d the 
Crown by Perjury^ Jhould be fucceeded by his Sen. From 
whence, I fay, it is evident, they would not allow a 
King de Fa&o the fame Rights and Privileges, which 
belong to a King de Jure ; for the Son of a King o'e Jure 
has an undoubted Title to the Succeffion, which no Sub- 
jedsevcr prefumed to difpute : But the Bidiops did not 
think, that was Stephens Cafe; and therefore v/ould not 
confent, that his Son fliould inherit the Crown after 
him. And now I hope the Reader will be able to judge, 
how dangerous it is, to make the Actions, even of the 
greateft Subjeds, a Proof of the Conftitution in any 
Reign. In this of Stephen.^ (o) we find the Bifhop? and 
Clergy pretended to the fole Authority (where the Pope 
did not interpofe) of making and removing Kings; 
and they took upon them to difpofe of the Allegiance of 
the Subje6i:, whenever they judged it neceffary ; or 
thought they might do it with Safety. But will any one 
inferr from hence, that fuch Proceedings were warranta- 
ble by the Laws of England? Or that Oaths taken to a 
Perlbn, that has the Power in his Hands, aretobeconfi- 
dered only as the EfFefts of Fear and Compullion ; and 
are therefore of no Obligation ? And yet this was one of 
the Arguments theBifhops infifted on for their Juftificati-' 
on, in the contrary Oaths they took to Maud and Stephen. 
But their chief Plea on thefe Occafions, was the Pope's 
Authority, to which they profefs'd an abfolute Obe- 
dience. The Dodor is pleafed to (p) affirm, That his 
Aduerfaries had not proved., that this pretended Power of 
Popes., in Jetting up Kings., was ever pra&ijed ; or that in 
Obedience to any fuch Papal Injun&ions.^ SubjeBs had ever 
fworn Allegiance to Non-Hereditary Kings. But he muft al- 
low me to fay, they had very good Evidence for this Af- 
fertion ; and it is fomewhat ftrange, the Dodor fhould 
overlook it, in his Perufal oi William of Malmsbury : For 
that Hiftorian (q) tells us, that when Stephen had reco- 
vered the Throne, Henry Bifhop of Winchefler., the Pope^s 
Legate.^ held a Council of Bijhops^ in which (notwith- 

(0) W. Malmsb. Hift. Nov. ]. 2. (p) Defence, p. 2<^, 21. 

The Legate tells the Council: Ventilata (-?) W. Malmsb. Hift. Nov. I. 2.' 

eft hefterno die caufa fecretu coram ma- Auditum eft leflas in eo literas Domini 

jori parte Cleri Angliae, ad CMJus jiu po- Apoftolici, quibus modeftb Legatum ar- 

tiffimitm ffeSiat Principem eligere, fmul- guerer, qu6d liberare fiatrem fuum dif- 

que ordinare, fimulaflet ; delifti tamen fuperioris gra- 

P ftanding 

^4 ^^^ Hereditary Right of the • 

ftanding their former repeated Oaths to Aiaud) they all 
declare for Stephen ; and this they did in Obedience to the 
To^es Command^ whofe Letter was read before them. And 
fome Years after, when Stephen endeavoured to get his 
Son crown'd, the (r) Bifhops abfolutely refufed it ; al- 
ledging for their Excufe, that they had received ezprefs 
Orders from the Pope^ never to comply with fuch a Propofal. 
I might produce farther Teftimonies, to fhew the great 
Influence the Pope's Commands had over the Prelates, 
and even fome of the Nobility too, in this Reign ; but 
would it from thence follow, that the Pope'*s Vepojing 
Power Was then eitablilh'd by Law ? That it was a Part 
of our Conflitution? And that none could be Lawful 
Kings, but fuch as were advanced to the Throne by his 
Confent and Approbation? If this was really the Cafe, 
it muft be confefs'd, Maud had a very ill Caufe ; and lb 
has the Do(fior too; for then, it feem?, Stephen was a Law- 
/«/King, by the Popes Authority ; not by Virtue of his 
beine in Poffejficn. 

These Reflexions upon Stephens Reign, have ar- 
rived to an Extent beyond my Defign and Expedl-ation ; 
but I hope it will be confiderM, that being the firfl: King 
from the Conqueft, who was truly and properly King 
de Fa&o^ it was highly requifite, his Story Ihould be 
examin'd with Care and Exadnefs ; for tho' the Do£tor 
has thought fit to pals it over with very little Notice ; 
yet with his Leave, I fliould imagine it very reafonable 
to expert, fome Difcoveries might be made of the Autho- 
rity of Kings de Fa&o in his Reign, if it had been own'd 
and allow'd by the Conftitution. The Event indeed is by 
no means favourable to the Dodor; and I am perfuaded, 
the Reader will be of the fame Opinion. I fhall now 
only add the following Ihort Obfervations ; and then 
fliall put an End to this troublefome Reign. 

The firfl: is taken from a Paflage in our Hiftorians, 
who fpeaking of the Agreement between King Stephen^  

tiam facere, & magnopere cohottari, ut 
quocunque modo, vel Ecclefiaflico, vel 
Sseculari, poffet, ad Germani Jiberatio- 

Jiem accingeretur. Itaque jubere 

(fc.Legatum) fe, de parte Dei & Apofto- 
lici, ut Regem voluntatc populi, & af- 
fenfu Sedis Apoflolicae inumftum, quan- 
tis poffent viribus; nex"- juravente turba- 
tores ver6 Pacis, qui Comitifls Aude- 

gavenfi faverent, ad Excommunicatio- 
iiem vocandos, &c. 

( r ) Dominus fiquidem Papa literis 
fuis Cantnarienfi prohibncrat Archiepif- 
copo, ne filium Regis, qui contra juf- 
jurandum rcgnum ufurpJlTe videbatur, 
in Regem fublimaret. Hen. Hwrting- 
don. p. 305. Gen'af. DoroLwn. p. 1371. 


Cro^vn of England a/ferte^, &CC. 

and Henry Duke of Normandy^ tell us exprefly, That 
by (s) Virtue of that Accommodation, and not Iboner, 
Stephen became a Rightful King ; which (hews, they did 
not believe his Pojfeffion had made him fo before. Se» 
condly^ When Henry II. obtain'd the Crown, he depofed 
tfx Noblemen made by Stephen, as meer imaginary^ falfe 
Earls^ and Lords ; and refumed alfo the Lands granted to 
them by that King^ tho King de Fafto : And all this was 
done for this fole Reafonj viz. becaufe Steplien was an 
Vfurper ; and (t) therefore his A&s ought not to be prejudicial 
to the Lawful King ; As the Chronicle of Normandy, the 
Book of the Abbey of Wavcrly, Mr, Selden out of them, 
Guil. Neubrigenfis, and Chron. Brompton, inform us. 
This Remark was long ago made by Mr. (u ^ Selden^ and 
Mr. (x) Prynn^ Names of great Authority in our Hiftory, 
and who can never be fufpeded of Partiality in this 
Controverfy. On the other hand, Maud the Emprefs 
had created (y) Milo^ Earl of Hereford ; (z) Gaufred de 
Magna ViUa^ Earl of Efjex ; and (a) Robert de Sigilloj Bi- 
fhop of London ; of which Honours we do not find, that 
Stephen pretended to deprive them ; and we are fure the 
Bifhop continued in PofTeffion to the Time of his Death, 
which was not till Ten Years after. 

The next King, whofe Title I am now obliged to 
enquire into, is Henry II. (b) whom the Doctor ispleas'd 
to reckon among his Non- Hereditary^ or de FaBo Kings, 
for thefe two Reafons : Firff^ Becaufe his Mother Maud 
the Emprefs, from whom he derived his Right, was 
living in the fourteenth Year of his Reign. Secondly^ Be- 
caufe the Royal Family of Scotland^ being defcended fromi 
Edgar Athelings, Sifter, were before him in Blood ; and 
therefore ought to have enjoy 'd the Crown. But if it 
fhould appear, that thefe undoubted Heirs entirely re- ' 
figa'd up their Rights and Pretenfions; I hope then the 
Dod:or will allow Henry II. to be a Lawful King, without 


(/) W. Neubrigenfis, 1. i. c. 30. 
p. 105. Walt. Hemingford. c. 76. Et 
]oh,in. Brompton, Chron. p. IO37. Qui- 
ijus, Deo propitio, folenniter aclis, R. 
StephanHS tunc quafi prima jufie ying- 
lium reccpit. Matth. Paris, p. 86. ad 
A. D. 1 1 "5 3. Jit/htia de calo profpicientfy 
Rex Anglorum Stephanus, & Dux Nor- 
minnorum Henricus, apud Wallingford 
in Concordiam convenerunt. 

(r ; Chartx Invaforis prxjudicium le- 

5itimo Principi minimc facere debent. 
. Brompton, Chron. p. 1046. 

( « ) Tiilej of Hormur, p. 538. 

(x) Prynn'j Regi^er of Pari. Writty 
Part I. p. 240. 

(y) Rymcr Fosdera, &c. Tom. i. 

( ^ ) CamdenV Britannia. 

( a ) Sim. Dunelm. p. 269. Gervafl 
Dorobern. p. 1355. Godwin de Prseful. 
& Wharton de Epifc Lond. ' 

( b ) Dejenu ti his f^ietf, p. 163, 164. 


(;6 The Hereditary Right of the 

having Kecourfe to his Hypothefis. That the Em^nfs 
had a jurtTitle to the Crown, after her Fathers De- 
ceafe, is not to be difputed ; for all imaginable Care had 
been 'taken, to fecure the Succeffion to her, by the Oaths 
of all the Prelates, and Nobility : And therefore (he 
claim'd it as her Birthright ; and would never yield up 
the quiet Poffeffion of it to Stephen. But we have like- 
wife a well-grounded Aflurance, that (he never intended 
to fit longer in the Throne, than till her Son became ca- 
pable of the Government. This was probably the Rea- 
Ibn, why fhe would not take upon her the Title of 
Queen^ even when her Enemies were at her Feet, and 
Ihe feem'd to be entirely in Poffeffion of the Kingdom ; 
for upon any other account to have declined a Corona- 
tion, (c)confidering the Difpofition and Temper of thofe 
Times, might have proved very prejudicial to her Inte- 
reft. During the tender Age of her Son, fhe was con- 
tented to endure the Fatigues of a Military Life for fe^ 
veral Years; but at length, having loft her two great 
Supporters, the Earls o( Gloucefter and Hereford; and 
being tired out with (d) Vexations and Difappomtments, 
fhe refolves to leave England^ and to fpend the reft of 
her Days in Peace and Quietnefs with her Husband in 
Normandy. So that now it was plain, the future Profe- 
cution of the War againft Stephen, was wholly devolved 
upon her Son ; and it feem'd but reafonable, that the 
Crown of England fliould be the immediate Recompence 
of his Trouble in acquiring it. About (e) two Years 
after his Mother's Departure, Prince Henry landed in 
England, upon the Englijh Nobility of his Mother's Party 
having declar'd, that they would not ftir, till he (f) who 
had the Right, return'd into England: On his Arrival, 
tho' then but Sixteen Years of Age, many of the Nobi- 
lity difcover'd their Inclinations to hira ; (g) becaufe, of 
Right., all belong d to him ; and they were dejirom of fecuring 

( c ) Angli nifi coronati Rege fervirt 
mn erantfiliti. Ord. Vitalis, 1. 3. p. 503. 

(i) Imperatrix jam Anelicanae dif- 
cordise txdio affefta, in Nortnanniarn 
transfretavit, malcns fub tutela mariti 
fui in pace quiefcerc, quim in Anglia 
tot moleftias fuftinere. Gervaf, Doro- 
bern. p. 1365. ad K. D. 1147. 

( t ) Gervaf. Dorobern. ad A.D- 1 t 49. 

C/) Gervaf. A. 1149. p. 1366. No- 
Icbant enim Comites Anglis & Proce- 

res contra Regem Stephanum Uquam ex- 
citare feditionem, e6 qu6d Robertas & 
Milo Comites univerfx cariiis viam in- 
greffi fuerunt, & Imperatrix transfreta- 
verat, nifi Ipje, ad quern omnia de jure 
contingebant, in Angliam rediret. 

(^ ) Qiiia cum omnia de jure Con- 
tingebant. — Et jura Regni Henrico 
jam militi juvencalo confervare vole- 
bant. Gervaf. Dorobern. p. 1 366, 1 367. 


Cronxn ^/^ England afferted, ^c. $'7 

the Rights of the Kingdom to that young Knight. From 
which PafTages I may venture to inferr, that his Mother 
had aftually then made over her Title to him ; for how- 
he (hould liave a Bight upon any other account, is not 
eafy to imagine. He did at that time but fhew himfelf 
to them, to fix them to !iis Party, and then went for- 
ward into Scotland^ to the King his Coufin, who alfo 
treated with him, as claiming the Crown of England in 
his own Right, and engag'd him by Oath, (h) if he re- 
cover*d the Crown, to let him have Nevpcajik and JVbr- 
thumberland^ and all the Country between the Tine and 
the Tweed. In the Beginning o( January 1150. (i)he 
returned from Scotland into Normandy , and then his Fa* 
ther {k) Geojrey of Anjou refign'd up the Dukedom of 
Normandy to him, which Dukedom Geoffrey had held in 
Right of his Wife Maud; and therefore it is probable, 
that at her Inftance, at leaft not without herConfent, he 
gave it up to her Son Henry : And if his Mother was con- 
tent to refign to her Son her Right to the Duchy of Nor^ 
mandy^ of which (he and her Husband were then in quiet 
Pofleffion ; we have much more Reafon to think, (he 
did refign up to him her Right to the Crown of England^ 
which he himfelf was to be at the Pains of recovering by 
Force. He ftay*d in Normandy and Aquitaine till the Year 
115^, being engag*d in a War with the French King ; 
and during that time the War was renew'd and carry 'd 
on in England^ between King Stephen^ (I) and the Lords, 
that (tood up againfl: him, to preferve the Rights of the 
Crown for the young Duke Henry ^ as the Hiftorian tells 
us : So that it appears, they had then no farther Concern ^ 

for his Mother ; but look'd upon the Right of the Crown 
as devolv'd on him ; to whom, next time he came over 
into England^ it was agreed by King Stephen himfelf, 
that after his Deceafe, it (hould accordingly defcend. 
And nothing feems to put this Matter more out of que- 

( h) Hoveden, fol.280. b. 50. inter perpetuum poflidere totam terrara, qua 

Scriptor. port Bed. Henricus autem fi- eft a fluvio Twede ad fluvium Tine, 

lius Matildis Imperatricis jam 16 anno- ( ; ) Gervaf. p. 1367. 

rum ]uvenis nutritus in Curia David (i) Diceto, p, 525. Gaufridus Plan- 

regis Scottorum avi matris fuac, faftus tegeneft reddidit Ducatum Normanniae 

eft miles ab eodem Rege David in Ci- Henrico filio fuo. Knyghton, p. 2^90. 

vitate Carleoli, pri'.;s dato Sacramen- Et fciendum eft, quod decimo quinto 

to, quod fi ipfe Rex Anglix fieret, red- anno regni Regis Stephani, Galfridus 

deret ei Novum Caftellum, & totam Comes Andegavis reddidit Henrico fi- 

Northumbriam ; & permitteret ilium & lio fuo totam Normanniam. 

hxredes fuos in pace fine caluflinia in ( / ) Gervaf. ibid. 

Q Ition, 

5*8 The Hereditary Right of the \ 

im) A Cum- ftion,than the {m) Joy which the Emprefs yJ/aaL/exprefs'd 
Fia'trfbus^ "po" ^^^^ ^°"'^ Return into Normandy^ after he had per- 
omnigente fedlcd this Agreement with Steuben-, an undoubted Sign, 
d^&cTii/.' that he had done nothing in that hGt againft her Con- 
Utitii & ho- fent, much lefs to her Wrong and Prejudice ; and yet by 
eff/^Hea"* that Accommpdatioii^theSucceffion was fettled on the Son, 
doTiT. without any manner of Regard to the Mother's Right. 
And if we confider the Temper of the Emprefs, that 
will ftill add Force to this Argument : We find this to 
be her Charader, That (he was a Princefs of a very 
great Spirit ; and her Carrying it fo high upon her Vi' 
Story over King Ste^hen^ is a fufficient Proof of it. Now 
fuppofing that (he was of that Temper, and that The had 
not refign'd up her Right to the Crown, but Tent her 
Son over only toad in her Name; and he fo far abus'd 
his Mother, as without her Authority to give away her 
Right for ever, referving only the Reverfion of the Crown 
to himfelf : It cannot be conceived, that we (hould find 
nothing related in our Hiftorians, either done or faid by 
the Emprefs, in Vindication of her own Right ; efpeci' 
ally if we confider, that Hemy did not ftay in England 
long after the Agreement was made between King Ste- 
phen and him ; but returned back again foon into Nor- 
mandy^ which of all Places one would think he (hould 
not have chofen to go to, had he done his Mother, that 
was there, fo great an Injury; nor would flie have wel- 
com'd him thither with fo much Joy ; but rather have 
(hew'd her Relentment, by raifing him fome Trouble 
there. Yet we find nothing, but that he liv'd there 
quietly, without the leafi: Trouble from his Mother;. 
and fl^^ay'd there till he was fent for into England upon 
King Stephens Death ; and then we have no Ground to 
imagine, but that his Mother gave him Joy, and wifhM 
him a good Voyage hither, and a happy Reign : At 
leaft, the Silence of the Hiftorians , confidering her 
Temper, is a better Argument, that fhe had given up 
her Right, than their not mentioning her Reiignation, 
nor producing an Inflrument of it, is of the contrary. 
(»)Chroni- (n) Befides, we are told. King Henry put off his Expedi- 
mannis, tion to Ireland by the Perfuafions of his Mother ; which 
A D^ns ^^" never be believ'd by thofe, who think (he refented 
anno primo his PolTeflion of the Crown. And lallly, we have evi* , 
Heafcom- dent Proof, that (lie took her Son's Part in his Quarrel a- 


Crown of England afferted, &c: ^p 

;gainft Thomas Becket. In the Cotton Library there is an 
(o) ancient and very valuable Colleftion of Letters, by (9)Bibiioth; 
Thomas Becket and Others, relating to his Cafe 5 in (p) aai 
one of which it appears, that King Henry had corhplairt- B.2, Etvidc 
ed to his Mother againft the Archbilho'jj, and that (he f^^^ 
reproved Nicolas de Monte^ the Archbijhofs Friend, very ^f^"' '» , 
fharply upon that Account. Surely this was no Sign 6^ Epifiul^po- 
any Mifunderftanding between the Son and the Mother ; fe^^J^J^^^ 
but rather an undeniable Teftimony of the mutual Cori- mnr,^.^s6. 
fidence there was between them, fince the Injuries done Ep^'L *' 
to the one were refented by the other; which could 
never poffibly have happened, had the Emprefs look'd up- 
on her Son as an Vfitrper. 

Secondly^ That the Houfe of Scotland ever laid any 
Claim to the Crown of England, upon the account of 
their Defcent from Margaret^ the Sifter of Edgar AtM^ 
ling^ no where appears; on the contrary, it is an undb* 
niable Truth, that Da'vid King of Scotland (Nephew to 
Edgar) fwore to the Emprels Maud\ Succeffion ;' af- 
ferted her Right to it, to the manifeft Hazard of his dwrt 
Kingdom; and at length, by his fteady Adherence to 
her Caufe, and his Fidelity to her Son, witH whom he 
made the Agreement juft now mention'd, contributed 
very much to his Advancement to the Throne. Which 
Adtions, if they were not good Evidences of his having 
quitted all Pretenfions to the Inheritance of England^ it 
was certainly impoffible for him to give any that would 
have been good. .^oif) 

T H u s far I have endeavour'd to cleai? the Hiftot^ 06 
our Kings, from the Conqueft ; . and perhaps have fue-' 
ceeded in my Defign; which was to fhew, that the Sulin 
]tdis had Reafon to obey them, as Lawful Sovereigns, 
Stephen only excepted, without the Help of the DoftorV 
Principle. But if I prefume too much upon the Strength' 
of my Arguments, I have this Comfort however, thaf 
the Doctor will not be able to overthrow their Probabii- 
lity at leaft; which I cannot but think n.eceflary fdr; '^^'^'"^2 
him in this prefent Undertaking. For only un** 
certain, whether Williaml. ■slM. his Sons,, had a Legal 
Title to the Crown,, (without regard to their PoflelBon); -^ 

this very Uncertainty would be a iuffieient Confutation! -« 

of what he has urged from their Reigns; becatife his^ ;I-^ 

ho'^'^tdConflitutioh abfolutely defiends- uport the undoubt- n 


6o ' The Hereditary Right of the 

ed Exiftence of Kings de Fa&o^ who were fubmitted to 
and obeyed, for no other Reafon, but upon the account 
of their being in the Throne : But the Doctor cannot be 
fure, the Subjects did not think themfelves bound in Con- 
fcience, to pay their Allegiance to thcfe Princes upon o* 
ther Confiderations, bcfides their PofeJ/ion ; and confe- 
quently his Caufe is far from being fecure. He is pleas'd 
indeed to expe^, we fhould demonftrate the Rights of 
Del^! ^" ^^^^'^ Princes ; and therefore (g) complains of one of his 
p. 21, &c. Anfvverers, That he had not proved, that the Subje&s fubmit- 
ted to certain Kings (whom he had called Kings de Fa6to) 
upon the Score of Hereditary Righty or of any Right at all, 
antecedent to their Fojfejfion^ which (fays he) of all things he 
ought to have done. But by his Leave, his Adverfaries 
will never think it their Duty, to prove the Rights of 
Princes, more than of any private Men ; which, by the 
eftablifh'd Rules of Equity, ought always to be pre- 
fumed, and taken for granted, till the Contrary is made 
evident. On the other hand, none are to be efteemed 
Criminals without Convidion ; and yet fuch were cer- 
tainly all Kings de FaBo ; for the Kingdoms then pof- 
fefs'd, did of Right belong to another, from whom 
they were forced by Violence, and withheld by noto* 
rious Injuftice. Since the Dodtor therefore has thought 
fit to charge fo many of our Kings with this Crime ; it 
becomes him to make it good by undoubted Teftimo- 
nies and Authorities; otherwife he denies them that Ju- 
ftice, which the Laws of all Countries allow to the mean- 
eft Subjects, who are ever reputed Innocent, till the 
Guilt they are accufed of, is clearly detedted, and ma-' 

f^rTn E Do6tor perhaps may nowexped, I fhould fol- 
low him through his whole LiH o( Kings de FaBo ; but 
fince he has not thought it worth his while, to take much 
Notice of them himfelf; he will excufe me, if I pafs 
(r) See his them over with as little Regard : ( r ) He has been 
^j_^,p-95j pleas'd indeed to draw an Argument from a PafTage 
in our Homilies relating to King John; and (as the 
0^ Bijhop (j) Bi(hop of Worcefler had done before him) urges it as 
JeelvL- a Proof, That the Engli/h Clergy in Queen Elizabeth's 
reafmabienefs Reigu, thought Allegiancc was due to King John^ as a 
paration,sc<:. Lawful Prince ; becaufe they call him the SubjeB^s Soue- 
P- 32> 33- reign Lord the King ; and their Natural Lord the King of 

England : 

Croivn 0/ England ajferted, &c. 6i 

Englahd ; whereas it is well known^ that King John was no 
more than a King in Pojfejion ; for Arthur, wlo was his el- 
der Brother's Son^ and put up a Claim againfi him^ with his 
Sijier Eleonore, who was kept in Prifin all his Reign^ were 
nearer in Blood to the Throne^ than himjelf. But let the Do- 
dor be as confident as he pleafes ; we have very gooa 
Authority to affirm, that King Richard (t) appointed his 
Brother John his Succeflbr, by which Tefiamentary Right 
(according to ancient Cuftom) he might become a Law- 
ful King, and therefore John pretends to have fucceeded 
Jure Hdereditario. In the next place it appears, that (u) 
Arthur very early fubmitted to King John^ and did Ho- 
mage to him ; and {x) I find an Inftrument cited out of 
Chopinus^ which (liews, he acknowledged John to be King 
of England ; upon which my (y) Author makes the fol- 
lowing Reflexion : Truly //Arthur had not thought John 
a Lawful King^ he would not in time of Enmity fo have termed 
him ; but he muji needs repute him a Lawful King^ when at 
Vernon ) the French King being prefent^ he did Homage to 
John, as to the King of England his Sovereign Lord. Now 
as the Bijhop of Worcefter^ and the Do£tor ask^ why we 
may not do as much for any King de Fa&o^ as the People 
iof England did foi: John : So I would be informed in my 
Turn, whether the Subjedts could do lefs, than call him 
King, and obey him as fuch ; fince Arthur^ the true Heir, 
had done fo before them. And why might not this be 
the Reafon, that the Convocation beftows the Title of 
King upon John ; and fpeaks of him, as a Lawful So- 
vereign ? Befides, the Do6lor has been told, that were 
John no more than a King de Fa&o^ it was ftill unlawful 
for the Pope to curfe him ; to abfohe the Subje&s from their 
Allegiance to him ; and give the Kingdom to the Dauphin of 
France, which are the chief Points the Homilies intended 
to condemn. For their Defign was, to cenfure the Pope's 
Interpofitiori in the Affairs of England^ and to rejed his 
pretended Authority in difpofing of the Obedience of 

<<) i)r. Brady at the End of Ri- pinus : Arthurus Dux Brit^aniae, Comes 

chard I. and Hijiorj of the SucceJJlon, Andegavix, &c. Novcritis qu6d fed 

p. 377. charimmo D.omino meo Philippo Regi 

(«) Matth. Paris, p. 200. Franciat illuftri Homagium Ligeum, &c. 

(x^ In Serjeant Fairfax' J Confutation de feodo Britannix, &c. qaando Deo 

«/ Serjeant Brown'/ Errors, upon the Stat. volente ipfe & ego ea ac^juifiverimuS 

25 Edw. 3. of Children born beyond Sea, contra Johanncm Regem Anglix. 
(4 MS. ttritteH in Qtteen Elizabeths Qjr) Serjeant Fairfax, ibid. 

Tuife) this Record is rtcited tut of Cbo- 

H Subjeas; 

6z The Hereditary Right of the 

Subje£ls ; and therefore it does not follow, becaufe they 
difallow of the Barons transferring their Allegiance to the 
Dauphin^ at the Pope's Inftigation ; that therefore they 
held it unlawful for them, to preferr Arthur's Title to 
Johns. But then the Dodtor thinks, they would not 
give John the Name of King ; much lefs would they honour 
him xvith the Appellation of their hhtural Lord and Sove" 
reign^ had they not helie'vd.^ that Pojfejion gave him a fuf- 
ficient Title ; for by Defcent it was impojfihk he Jhould have 
kny ; Arthur and his Sifter (his elder Brother's Children) be- 
ing living. But with all due Refped to the learned Bi- 
fhop and Dodor, I muft take the Liberty to fay, they 
(■2)Arthur atc much miftaken, when they affirm, xhzt (z) Arthur 
1202^' ?ie ^^s alive, when the Barons invited the 'Dauphin into Eng- 
Barons invite-land', that Priuce having been dead fourteen Years before, 
k'a m6.' So that the only poffible Bar to King Johns Titk.^ muft 
^«t^;Pj"s. be £/eonore, Arthurs Sifter; (a) who was indeed living 
infrtfon' many Years after Henry III. poflefs'd the Throne. Upon 
M^ar?'' which account (unlefs King Richard^ Power to difpofe of 
the Succeffion be allowed) I (hall not pretend to defend 
King y^/'n's Pofleffion of the Kingdom, againft a Right 
Co manifeft, as hers was ; which it does not appear, fhe 
had ever iurrender'd : Tho' at the fame time, I cannot 
but think it ftrange, if there had been no manner of Ob- 
jection againft her Title, that neither the Pope., nor the 
French King, nor the Barons of England., in their fre- 
quent Quarrels with King John., and his Son, (hould ever 
fet up that Lady's Claim againft them, and reproach 
them with Injuftice to her ; which yet they do not feem 
to have ever done, as far as we can learn from the Hifto- 
ries of thofe Times; nor indeed does it appear, that 
Eleonore ever laid Claim to the Kingdom. But I am not 
folicitous about this Matter ; and therefore fhall, with- 
out any Difficulty, agree with the Do61or, if he infifts 
upon it, that King John was no better, than a King de 
Fa&o., at the Time we are fpeaking of; his Niece being 
ftill living. But is it impoilible, that the Authors of this 
Homily fhould, through Ignorance or Inadvertency, 
think better of King Johns Title, than it deferved? 
Might they not believe, that Eleonore^ as well as her 
Brother, was then dead ; and confequently, that bis 
Right was not to be difputed ? This Confideration was 
fuggefted to the Doftor by one of his Adverfaries, but 




Cromt of England afferted, &c. 63 

without any Succefs; for the (/(jDodlor thinks it a Re- {h)-De^t 
flexion upon the learned Compilers of the Homilies, to ?• *39' 
imagine, they were not as well acquainted with the Hifiory of 
that Age^ as we. Now, tho* I will never allow the Do- 
ftor to have more Reverence and Efteem for thofe Au- 
thors, than rayfelf; yet 1 can eafily believe, they were 
miftaken in this Point of Hiftory; and my Reafon is, 
becaufe I find them guilty of a much greater Error, in 
this very Paffage, that is now before us. If he will be 
pleafed to caft his Eye upon this Part of the Homilies, 
he will be fenfible, they reproach the Barons^ &c. with 
taking up Arms for the Dauphin againft King John^ at 
the Inftigation of the Pope ; whereas it is a Truth not 
to be called in Queftion, (if Matthew Paris may be cre- 
dited) that the Pope difcourag'd that Rebellion to the 
utmoft; and at laft excommunicated the Promoters and 
Fomenters of it. The Methods made ufe of by him to 
fupprefs thofe Inlurredions, are fo copioufly related by 
that Hiftorian, that it may well feem wonderful, they 
fliould flip out of the Memory of the Writers of this 
Homily } but they might eafily be fuppofed ignorant of 
the Time, when Eleonore died ; becaufe flie is hardly men- 
tion'd by that Author, throughout his whole Account of 
King ^o^n's Reign; and when he takes Notice of her 
Death under Henry III, he does it in fo few Words, that 
it. might eafily efcape a diligent Reader's Obfervation. 
If any fliould be offended with the Liberty here taken 
with the Homily; I muft again aflure my Reader, it 
proceeds not from the leaft Difaffedion to the Compo- 
fers, much lefs to the Dodtrine of it, which is the only 
thing we are obliged to maintain ; not the Arguments 
made ufe of to prove it. So that it fl:ill remains true, 
that the Pope had no Authority to abfolve the People of 
England from their Allegiance to King John; and who- 
ever took up Arms againft him, by Virtue of any fuch 
Command or Injundion, was guilty of Rebellion ; tho' 
it is alfo certain, that the Pope never advifed the War 
maintained by the Barons for the Dauphin; but on the 
contrary, cenfured, and condemn'd it. Laftly, the Do- 
dor infifts upon it, that to call John King of England,, 
and Natural Lord^ and Sovereign^ are evident Signs, they 
thought him to be a Rightful King. But this Confe- 
quence, as to calling John King of England^ is not fo ^ 


64 T^^ Hereditary Right of the 

certain as the Doaor takes it to be ; for the Hiftorians, 
that did not believe Stephen had a Right to the Throne of 
England, always give him the Title of King' even Maud 
the Emprefs herlelf, (c) in her Charter to Milo of mreford^ 
ftvles him King of England ; tho' at that Time he was her 
Prifoner. And it is worth obferving, that the Scripture 
tells us that iMolhetb reigned Two Years, and Athahab 
Six • but nobody will inferr from thence, that he was a 
Lawful Kin?, or (he a Queen : And which is ftlll more 
remarkable, {d) Ba^ld calls Ahfahm King; and yet fure- 
Iv he never acknowledged, he was fo de jure 1 mult 
defire likewife, it may be confider'd, whether the Word 
mtural is applicable to a King de ¥a&o ; for my {e) Lord 
Chief Tuftice Coke teaches us. That Natural Allegiance ts 
due ominally by Nature and Birthright ; and he that oxveth 
this U called Subditus Natus; and therefore in an IndtS^ 
tnent for Treafon againft J. Dethick, id and 3d of Philip and 
Mary, it ran, Contra Philip. & Mariam fupremos Do- 
minos fuos ; rvhere Naturales was omitted, becaufe King 
Philip was not his Natural Liege Lord. From whence it 
feems plain, that King John, having no Title by Birth- 
right could not properly be called the Natural Lord^ 
and Sovereign of the People of Enghnd; and therefore the 
Writers of the Homilies, when they fpeak of him in 
thofe Terms, did believe he had a Right, by Blood, to 
the Crown ; or elfe we muft fay, they did not truly con* 
fider the Propriety of that Exprefiion. 

I NOW proceed to the Houfe ofLancafier ; and fhall exa- 
mine the feveral Obfervations, which the Doctor is pleas'd 
to think for his Purpofe, in the Hiftory of that Family, 
(f) He begins his firft Remark with a Reflexion upon the 
Condua of Bifliop Merks of Carlifle : Of all the Great 
Men (fays he) we meet with in our Hiftory, none was more 
likely to have flood out againft the Government of a King de 
Fafto, than that Bijhop; and yet it is certain, that he fats 

(O Kymer. Toin.i. p. 8. Matilda Teft. Theobaldo Archiepifcopo Qnt. 

li). Hen. R. filia & Anglorum Do- Roberto Epifcopo Lond Alocandro E- 

mina. Hanc autetn Donationcm feci ei pifcopo Uncoln. Bernardo EpifcoM Sam 

■apud Oxineford, &c. Pro fervirio fuo Gi David", NigeUo Epifcopo Ehenfi, 

q^ mihi fecerat, & ita quod tunc habe- Davidc Rege Scor Roberto Com.GIouc. 

hua in captione mea apud BriftoU. Re- Reginaldo Com. Cornubia:. 

•em Stcphanum, qui Dei mifericordia id') 2&m. xv. 19. 

&auxilioRobertiCom. Gloceft. fratri8 {e) JaCaivm s Gfe. 

mei, & auxilio ipfius Miloni$ & alio- (/) nfff, p. 4. 
Jum Baronmn meorom captun fuit, &(j. 

t in 

Cromi of England ajferte^, diic. . 6^ 

in Henry IV.hfirJi Parliament^ in which thofe ABs werepafii^ 
that we have in the Statute' Book; for it was at the Cloje 
of that Parliament^ he made his Speech in Behalf of King 
Richard ; and feme time after pleaded that Kings Pardon 
for a Confpiracy againji him^ for which he fiood condemned to 
die. And {g) a little after; It is a great Miftake tothink^ (g) Vieii} 
there were any Nonjurors in the Numerous Party^ that efpoufed ^' ^* 
the Title of the Houfe of York ; for all the Partizans of that 
Houfe lived in Suhmijfion^ and took Oaths of Allegiance to the 
ThreeYi^my^s. Would not any one now conclude from 
thefe confident Paflages, that the Do6lor had Demon> 
ftration on his fide ; and that it could never be difpu-r 
ted, but that this Bifhop of Carlijle had acknowledged 
Henry IV. and fworn Allegiance to him? But what if 
the Dodor had really no Foundation for thefe bold Af- 
fertions ? And there is in Truth no manner of Evidence^ 
that ever this Bifhop took an Oath, or fi.ibmitted to 
Henry IV. Have we not then good Reafon to complain 
of the Injury done to that Prelate's Memory ? And will 
it not become the Dodor to make him Reparation ? It 
is a hard Cafe, that a Perfon, fo highly {h) honoured in (h) &e. 
Hiftory, and fo much reverenced by the ableft and moft ^^J' ^''"^ 
impartial Judges, fhould at laft be called to ^n account^ wind? pne-; 
and fall under the Do61:or's Cenfure, for an Adtion uni- aJJ^^^^^^ 
verfally applauded, without the leaft Contradiction^ for cA»f/j«//« 
more than Three Hundred Years ; furely the Arguments ^^^'J"i; 
fhould be very powerful, that can eafily ruin fo well De Art. 
eftablilhed a Reputation ; and nothing but the irrefiftible yi(,(,"stiiiing^- 
Force of Truth could prevail with the Dodor to rob fljet-j^rrfmi 
his Country of fo glorious an Example of Fidelity and ^l^^"' 
Fortitude. Well ; it is in vain to fpend Time in Ex- 
poftulations, if the Matter of Fad is really as he repre- 
ients it ; his Proof of which I fhall now confider. Tho- 
mas Merks, Bijhop of Carlifle (fays he) fuhmitted to 
Henry IV. and acknowledged his Authority ', for he fate iri 
his firfi Parliament.^ &c. But how does it froqi thence 
follow, that he muft have fubmitted to Henry iV ? The 
Dodot knew very well, that no Qualifying Oaths were 
then required of Peers at their Entrance into Parlia- 
ment : And by a late Example he might have been fatiP 
fied, that his Appearance in Parliament (I might call it 
a Convention ; for I (hall prove it to have been no better 
by and by) was no Argument, that he approved of their 

S Pro- 

66 . The tiereditarj Right of the 

proceedings: For he cannot be ignorant, that feveral 
of the Deprived B'tjhop attended fome Days in the late 
Convention ; and yet they neither acknowledged the 
Authority that fummoned it ; nor concurred with it in 
its Refolutions. The Doctor adds, He did not make his 
Speech^ till the Clofe of the Parliament ; and from thence in- 
ferrs^ that he was prefent in the preceding Part of that Sef- 
fiouy when many of Richard II.'s A&s were repealed. This 
isjuftasgood an Argument, as the former; in which he 
takes it for granted, that every Lord gives his adual 
Confent to every A61-, that pafifes. Befides, how does 
he know, that this Speech was made at the Clofe of 
the Parliament? And if it was, why muft it from 
thence follow, that he was prefent in the Beginning of 
it? Thefe are all meer Conje6tures, without any Sup- 
port from Hiftory ; and therefore may as well be denied 
by others, as they are affirmed by the Doctor. Laftly, 
The Do(fior urges it againft this Bilhop, That he after- 
wards pleaded the Pardon 0/ Henry IV. for a Confpiracy a- 
gainfi him^ for which he flood condemned to die. And what 
is the Confequence the Doftor would draw from thence ? 
Does it follow, that he thereby acknowledged him to be 
a Rightful King; or engaged himfelf to be his true and 
faithful Subjed: for the future? Might not a Man con- 
demned by Cromwell for ferving King Charles II. have 
pleaded a Pardon granted by that Vfurper., without the 
Imputation of owning his Authority ? Or is it abfolute- 
ly neceflary in fuch a Cafe, that a Man fhould be hang- 
ed, in order to fhew his Loyalty ? For what other Event 
can be expelled, if he muft accept of no Pardon ; 
which, it often happens, muft be pleaded, before it be- 
comes effectual ? But how comes the Dodor to know^ 
that Biftiop Merks ever pleaded Henry IV. 's Pardon ? In 
what Writer or Hiftory is it to be found ? Mr. Rymer 
(»') i>tf(fi(i; (to (i) whofe Colleftions he referrs his Reader) only 
P- 3?- gives us the Copy of the Pardon^ without any Intima- 
tion, that he ever pleaded it ; fo that we are yet to 
feek for Authority for this Piece of Hiftory. It may be, 
the Dodor thinks, there could be no other Motive for 
this Pardon, but only the AfTurance he had given Hen- 
ry IV. of becoming his good Subject for the future : 
But why then was it not inferred in the Pardon ? Why 
was that Reafon omitted ? Inftead of which, the only 


Cro%m of England afferted, &c. ^' 

Caufe afligtted for that AB: of Grace, is (k) tlie great Re- 
verence that King had for the Pontifical Dignity and Cha* 
ra&er. After all, the Dodor (l) thinks this Bifhop tnex- 
cafable in taking up Arms ; Jince the Earl of March (for 
tphoje Sake bnly^ as Right Heir to Richard II. it was lawful 
to levy War againji Henry IV.) never fet up his Claim to the 
Crmn^ in all that Reign ; and his Exclamation upon this 
Occafion is not a little infulting : What then becomes of 
Bijhop Merks? But what becomes of the Doctor, if Ru 
chard II. was alive at that Time, when this Bifhop ap- 
peared in Arms againft Henry IV ; is it not then evident, 
that our exadl Hiftorian is fubjeft to the fame Frailties 
he charges upon his Adverfaries ? Now that Richard If. 
was then alive, is certain from undoubted Authorities. 
For, Fir ft ^ We have the Teftimony of one, that (/w) flou- 
rifhed in thofe Times; who fays it exprefly, that when 
Bifhop Merks'j- Party was defeated^ King Richard was fo 
mortified at the News of that Misfortune^ that (as was re- 
ported) he voluntarily famijhed himfelf. And, Secondly, To 
put this Matter out of Queftion, we have the Word of 
Henry IV. himfelf, in the (n) forementioned Charter of 
Pardon ; in which it is faid, the Bifhop's Crime was con- 
fpiring with Thomas Blount, Bennet Sealy, Knights^ and 
many others condemned at Oxford, to reftore King Richard. 
It was Richard II.'s Title therefore, not the Earl of 
March\ which the Bifhop was concerned to defend; 
and conlequently his Obfervation about that Earl's Sub- 
miffion to Henry IV. is nothing to his Purpofe, were it 
true : And whether it is fo or not, (hall be examined in 
its proper Place. 

1 SHALL beg Leave to conclude this Defence of Bi- 
fhop Merks^ with that (hort Hiftory of him, which my 
Lord Chief Juftice Coke has inferted in his Injii^ 
tutes. (o) At the Parliament holden the Ftrft Tear 0/ Henry IV. 
on the firft Thuriday after the Bifhop of Canterbury had 


(i ) Rymer'i Foedera, &c. Tom. 8. 
p. 165. Nos attendcntes, qualiti;r pra- 
ratiis Thomas Merk Pontificalis digni- 
»tis characlere eft infignitus, & diviiio 
cultui quafi in fummo gradu mancipatus, 
& volentes proinde ob Dei reverenriam, 
& flatus fui faftiginm, rigoiem juftitise 
Regalis Clemeniise manfiietudine tern- 
perare, opinaiitei indubife inagis Deo 
gratum exiftere interdum mifereri & 
paicere, qukm continue judicium f^n- 

fuinis exercere, de Gratii noftra, &c' 
'ardonavimus eidem Epifcopo, &c. 

(0 Defence, p. 4. 

(w) Walfinghatn, Hift. Angl. in 
Hen. 4. p. 363. Richardus ciim audi- 
iflet hxc infortunia, mente confternatua 
femet ipfum extinxit inedia voluntaxia, 
ut fertur. See aljo, ]. HallV Chronicle^ 
Fol. 1 3. 

(«) Kymer. Fcedera, Tom. 8. p. 165. 

(0) Part 2. c. 15. de Artie. Clcr. 


68 The Hereditary Right of the 

wiUed the Lords ^ that in no wife they JhouU difclofe any things 
that Jhould he there fpoken ; the Earl of Northumberland 
demanded of the lords^ what were heft to he done for the 
l,ife of Richard 11. Thios far are the Words of the Roll of 
the Parliament. At this Time fiake that worthy Prelate f p) 
John Merks, Bi/hop of Carlifle; and{q)faid^ That they 
ought not to proceed to any Judgment againft King Richard, 
for Four Caufes. Firft, That the Lords had no Power to 
give judgment upon him^ that was their Superior^ and the 
Lord's Anointed. .Secondly, That they , obey d him for 
their Sovereign Lord and King Twenty Two Tears^ or 
more. Thirdly, // they had Power to give Judgment 
againft him., they ought in Jujiice. to call him to his An- 
fwer ; for that (faid he) is granted to the cruellefl Mur^ 
dererl or erranteft Thief in ordinary Courts of Juftice. 
Fourthly, That the Duke of Lancaftre had done more 
Trefpafs to King Richard and his Realm., than King Ri- 
chard had done to him or them., &c. and defird.^ that tj they 
would proceed againft him., the Names of them, that fo would 
proceed., might be entred into the Parliament Roll. It w fr«e, 
that the Parliament Roll omitteth this Speech of the Bijhop ; 
but it appeareth by the Parliament Roll., that the Lords prO' 
ceeded againji King Richard, and adjudged him to perpetual 
Prifon ; whofe Life they would by all means to be Javed., as 
the Roll reporteth. The Names of the Bijhops., and Lords., 
and Knights., that affented., are fet down., as the Roll of the 
Parliament reports , fo as it feemeth., that thefiout and refo- 
lute Speech of the worthy Bi/hop wrought feme Efe&. ^ For this 
Speech he was arrefted by the EarlMarJhal; and being for a 
fmall time committed to the Cuftody of the Abbot of St. Albans, 
was foon delivered, (r ) Againft him never any Judicial 

(p) It fhould be Thomas Merks. "fedward Cok« mcntms ; among mhich the 

' Yd) The Otbinal hnmn AHthority,uptn Bi/hop of Carlifle'^ does not occurr. 

rphich the Trmh^ij this Story of the Bifhop ( r) Tho' it does not appear, that any 

ef Carlifle and his Speech depends, is Judicial Proceeding ixas had again/} the 

i Hall'x ChronicU,nritten iwHenry VIII."^ Bifhop of Carlifle jor this Speech ; yet ne 

Reipn • hut that Hiprian does not tell us are very mil ajjured, that mthtn tm 

the certain Time, J^hen this Speech was de- Months after Henry the Fourth's Acceffton 

iivered • and therefore , tho' the DoHor to the Goven, he rtas deemed of his Bi- 

mllhav'e it, that it was at the Oofe of the Jhopricl 0/ Carlifle, and tranjlated to a. 

SeJTm  and Sir Edward Coke believes he poor one of little or no Value, by the Pope s 

has rightly gueffed at the true Occafwn of Authority; this is affirm' d ^j Walfing- 

it : yet it is pofflble, for any thing that ap- ham. ( Hift. Angl. in Hen. IV. p. 364.) 

pears to the contrary, that it might have And m find the Temporalties of Carlifle 

been delivered at the Beginning of that Par- were order'^d to be Surrendered to Will. 

liament; and the rather^ becaufe the Roll Strickland, 15. Novemb. primo Hen. 

fets down the Name of the Lords Spiritual Quarti. (Rymer. Fadera, &c. Tom. 8. 

and Temporal, rtho voted at the Time Sir pi 106.) In January folloving i*e mea 

t fro. 

Cromi of England ajferted, &c. 69 

Proceeding xcas had for this Speech in Parliament. But this 
Bifhop., tranfported with Excejs ofZeal^ and affepionate T>e^ 
fire of the Enlargement and Refiitution of King Richard, was 
Party and Privy to the Confpiracy of Thomas Holland Earl 
o/Kent, John Holland £^r/o/ Huntington, John Mon> 
tacute Earl of Salisbury, Edward Earl 0/ Rutland, 
Thomas lorrf Spencer, itfc. for which he, was indited of 
High Treafon^ arraignd^ tryd^ and had Judgment.^ as in 
Cafe of High Treafon ; but the King pardon d him., and fet 
him at Liberty. Such was the Opinion this great^ Lord 
Chief Juftlce had of Bifhop Merks ; in Confideration of 
which, together with the other Remarks I have now 
made upon his Cafe, I Dial 1 take the Liberty to believe, 
he never fvvore Allegiance to Henry IV. notwithftanding 
(s) the Dodlor's Confidence, that there were no Nonjurors 
in his Reign. I (hall only now add, for the DotWs 
particularlnformation, that tho' he is pleaCed to cenfure 
this Bifliop's Appearance in Arms againfl: Bemy IV. as a 
Breach of his Oath, and an Ad: of Rebellion ; yet the 
Records of Parliament fpeak of it in a different manner j 
for (t) there it is faid, That all thofe., that leuied War with 
fi6e £ar/ 0/ Salisbury, f^e Lori Defpenfer, q^c. did therein 
perform their Faith and Allegiance to their Liege Lord King 
Richard, according to their Duty to God, and to the Laws 
and Cuftoms of the Realm of "England. I hope, after ^o 
ample a Declaration in Parliament, in Defence of this 
Bifhop, the Dodor will no more difturb his Afhes ; but 
fuffer him to enjoy quietly that Honour and Reputation, 
which has hitherto been thought his Due. 

And now the Do6for muft give me Leave to com- 
plain a little of his Severity to his Adverfaries; for he 
has impofed it as a Task upon them. That they Jhould 
prove., there were any Nonjurors in the Times of his Kings de 
Fado : And with much Aflurance he feems to {u) boaft, 

mth him in the Tomr, (Rymer, ibid. p- 16-5.) *ni, conffquentty, his Deprivd- 

p 121 ) irom K hence, in June, he was tion bore Date before tt. It may be here 

committed to the Cuftody of the Abbot of obferued, ho^ hiMy the Pope Uvo^nd 

Weftmiiifter. ( Rymer, ibid. p. 150.) Henry r/i« Fourth's Title ; fmceHe dcpn- 

Noxf this early Deprivation from his Bi- ved Bifhop Merks for not fnbmittingta 

Ihoprick cannot, with Probability, be attri- him; and that contrary to an exprcjs Alt 

btttcd to any ether CMe, befidcs the Liber- of Parliament, made by Richard II. a- 

ty be took in his Speech, or his Refufal to gainji Tranflations of injhops by the I apal 

do Homage to Hen. I V : For the Treafon, Authority. 

for which he was indited, rfas not commit- CO ^i^, V- 2' ^"d Defence, p.33,34. 

, ted, till after St. Nicolas Da-,, which was CO Rot. Par), i Edw. 4. & 32. 

the' 6th of December. (Rymer, ibid. C») Defence, p. 33, 34. 

T that 

*]0 The Hereditary Right of the 

that they had not fucceeded in their Attempt. Surely 
this is a rigorous Exaftion, and unworthy of the Do- 
ctor's Equity and Moderation ; for at this rate we muft 
be obliged to prove Mens Honeftyand Innocence, which 
by the eftablifhed Rules of Juftice ought ahvays to be 
prefumed. Befides, we are at prefent in Pcffejfwn^ (a 
Coniideration, which ought to be of fome Weight with 
the Dodtor) for till he was pleafed to caft the firft Stone 
at this worthy Bilhop, a clearer Charader had never been 
tranfmitted in Hiftory, than what he enjoy 'd ; and that 
purely upon the account of his Loyalty and Fidelity to 
his Rightful King. We. may therefore take it for grant- 
ed, that he really was, what he has hitherto, without 
the Icaft Contradidion, been reprefented to be, a Man 
of Confcimce and Integrity ; and leave it to the Doctor's 
Skill and Management, to give Light to thofe Spots and 
Blemifhes, he pretends to have difcovered in him. For 
the fame Reafon I may be allowed to believe, there 
were many more Nonjurors among the great Men, that 
took up Arms againft H^nrj/ IV. or lived in his Reign, 
till the Dodor produces his flrong Arguments to the con- 
ti'ary. But however, that I may not omit any thing, 
which the Dodtor thinks neceflary for his Satisfadion ; I 
will give him another Inftance of an eminent Perfon, 
who chofe to lofe a great Employment, rather than 
fubmit to Henry IV. as his Lawful King ; and that was 
(x) Princes (x) Sir Johu Caty, Chief Baron of the Exchequer^ at the 
Danmonij Xime of Richard ll.'s Depofition ; who was banifhcd by 
p. 152.' that Prince for no other Reafon, but becaufe he would 
never own his Authority. This Cafe, I prefume, will 
merit the Doftor's Confideration ; for here we have a 
judge fo little acquainted with the DoBors Confiitution^ 
that he fufFers himfelf to be deprived of his Fortune and 
Country, rather than he would do Fealty to a King de 
(y) Rymer. Ta^o. I may likewife add, that (y) feveral Clergymen 
ToS. were in Arms againft Henr)/ IV; and the (z) Friars Minors 
p- 333- did generally favour that King's Enemies : Now I fhould 
fingham^ think it allowable to call thefe Nonjurors ; fince in thofe 
?'i^6(f "^'' D^ys the Inferior Clergy were not oblig'd to take Oaths 
of Allegiance. Upon which account, I muft confefs, 
it is not a little furprizing to me, to find the Do6tor fo 
often calling upon his Adverfaries, to produce the Names 
/ of Nonjurors throughout the Reigns of his Kings de FaBo ; 


Crouon of England ajferted, &c. ^ ^ 

ii \i evety individual Subject had been obb'ged to take 
the Oath of Allegianee in thofe Days ; or all thofe, that 
had taken it, were influenced by the Dodlor's Princi- 
ple, that Allegiance is due to emrj King in Fojjejfion ^ thS 
coritrary to which Aflertion I have already in fome Mea-; 
fure fhewn ; and fhall do it rriore fully in the Sequel of 
this DilcDurfe. The Dod:or indeed would perfuade us, 
that ia) William the Conqueror made every Inhabitant in Eng- 
liind do Homage^ and fwear Fealty to him. But if he had 
giveti himfelf Leave to confider fully of this Matter, he 
would have been fatisfied, that Ingulfus (the Author ci- 
ted by him) could not mean, that all Perfons, without 
Exception, took thefe Oaths of Fealty; but only tiie King's 
principal Tenants, and other great Men^ who held Lands 
upon Secular Services, and therefore were called Homines 
Regis : That is, fuch only Cwhich the Doctor prefently 
after confefles) as had Lands defcribed in Doom/day Book. 
Now it is certain, the Inferior Clergy were bound by 
none of thefe Tenures ; but held, whatever Lands add 
Poffeffions they had, in Frank Almoigne ; (b) by Vertue of 
which they were excufed from Fealty^ and all manner of* 
Services, befides that of Praying for their Patronsr 
This Privilege was afterwards [c) fecured to them by the 
Fo)3^th Lateran Council^ under Innocent III ; and that 
Council being received, and approved of in the Coun- 
cil of Oxford (held under Archbifliop S. Langton^ and ra- 
tified by King Henry) the Clergy were never difturbed id 
the Enjoyment of thefe Rights, till the Times of the! 
Reformation : So that there could be no Nonjurors among 
the great Body of the Clergy of England^ under any of 
the Dodor's Kings de Fa&o. And to what Purpofe then 
does he fo often ask, Who were the Nonjurors in thofe 
Reigns? Had the Clergy of England enjoy 'd this Pri- 
virlege at the Time of the late Revolution; near Four 

(a) Fiew, p. 2. ctiammiin extant integrse, aut vefligik 

{bj ]. Selden. in notis ad Eadmerum, fua reliquCre, folennis Fidei profeflio 

t, 203. Frankajmoigne, feu Liberam SacramentS firmata jure ejtigitur, &c. 

leemofynam vocitamus, quae ad ordi- Coke'; /«/?. Part i. J. 2. c. 6. Se&. 

rem facrum tantummodo fpeftat, & 155. They that hold in Fiank Almoignt 

tieque cenfum, neque Fidei, quam di- Jhall do no Fealty to their Lord ; and the 

ximus, profcffionem, fed precnm folum- Lord is excluded from having any earthly 

modo in Patronorum, feu Dbminorurh or temporal Services of them. 

felutem efFuiidendarum officiutn a cli- (cj Mr. Dodwell'/ Con/iderations fff 

entibus exigit ; ita tamen ut Civill Foro pnfent Gnccrn^ent, p. i(5(6, 175, iSjj 

Cliens de ea re fifti non poflit. In cae- 184. 
teris formulis quotquot apnd rio^ aut 


7Z The Hereditary Right of the 

Hundred of them had quietly continued in the PofTef- 
fion of their Livings, of which they were for no other 
Reafon deprived, but becaufe they were Nonjurors : And 
might not the next Age then have demanded, as the 
Doctor does of the Times beforementloned, Who were 
the Nonjurors at the Reiwluticn ? For befides Eight or Nine 
Blfhops, and a lefler Number of Temporal Lords, it 
may well be queftloned, whether the reft of the Gen^ 
tlemen of the Laity, who refufed the Oaths, will be 
remember'd In our Hiftories. Neither were the Clergy 
the only Perfons exempted from taking Oaths of Fealty 
in the Conqueror s Reign ; but alfo all thofc, that held 
Lands In id) Allod'w^ of which we (e) meet with frequent 
Mention in Doomfday Book. Befides, who were thefe 
great Men^ that did Homage to the Conqueror ? The Bijhop 
and Abbots^ &c. mention'd by Hoveden to have fworn to 
him at Salisbury. Had they been Saxons.^ it might have 
ferv*d the Doctor's Purpofe, fuppofing him to be only a 
King de FaBo: But it is worth obferving, that this hap- 
pened towards the latter End of his Reign ; at which 
Time all the old Englijh Inhabitants of Note had been 
dlfpoflefiTed in a manner of their Rftates and Fortunes ; 
and the Normans were generally feized of the Lands of 
the Kingdom, together with all the great Offices and 
Employments, Ecclefiaftical, as well as Civil. This is 
fo notorious a Truth, that none can be ignorant of it, 
that are but flenderly acquainted with the Hiftorians of 
that Time, (f) Ingulf us aflures us. That King William 
difiributed the Earldoms^ Baronies., Bijhofricks^ and Prela- 
cies of the whole Land to his Normans ; and hardly fufferd 
an EngllQiman to arrive to any Degree of Honour or Power. 
And he adds. The Normians now hated the Engllfh at that 
rate.^ that whatfoever their Merit might otherwife be^ they 

(d) j. Selden in Notis ad Fadmerum, 
p. 203. allodia etiam omni Fidei, qvx 
juramento pracftito fieri foler, profef- 
iione libera funt. 

(e) Dr. BradyV Hiji. of England, 
Vol. I . p. 6j. and. 204. 

(/) Ingulfus, p. 70. Wilhelmus R. 
Comitatns, Baronias, Epifcopatus, & 
Pnelatias totius terrae fuis Normannis 
diftribuit, & vii aliquem Anglicura ad 
honoris ftatum vel alicujus dominii Prin- 

cipatum alcendere perniifit. Tan- 

tum nunc Anglicos abominati funt Nor- 
tnanni, ut quantocunque merito polle- 

rent, de dignitatibus repellerentur, 8c 
multi* minus habiles Alienigenje, de 
qujcunque alia natiofie, qua fub ccbIo 
efl, extitiflenr, gratant^r airumerentur. 
Ipfum etiam idioma tantLmabhorrebant, 
qu.'d Leges terrae flatiitique Angjico- 
rum Reguni Lingua Gallid traclarentur, 
& pueris etiam in Schojis principia li- 
terarum Grammatica Gallid', non Ang- 
licj tradereniur, &c. Mere to this pnr- 
poje may be found in Ord. Vitaiis, ]. 3. 
p. 5':7, 520, 523. arJ Henry Hunting- 
don, 1. 6. p. 37Q. 


Crown ^/England ajferted, &c. **7^ 

de^rivd them of all Dignities^ and fent for worthlefs Fo- 
reigners from all Farts to fill their Places. And it is evident 
from Doomjday Book^ that moft of the Lands of England 
were then poflefifed by Normans ; and confequently few 
befides were under any Obligation to take Oaths to the 
Conqueror. Laftly, It fhould be confider'd, that many of 
the Engltjh Nobility and Gentry, fyc. voluntarily left 
the Kingdom in the Beginning of that Prince's Reign^ 
before the Time, in which he is faid to have tender 'd 
. the Oaths to his Subjects. A great Part of them fled in^ 
to Scotland, fome into Denmark zntMreland', and others 
(g) went to Conftantmople ; where they were well re- 
ceiv'd, and kindly entertain'd by the Emperor Alexius. 
Now 1 leave it to the Dodor to judge, whether all thefe 
voluntary Exiles may not properly be efteem'd Non- 
jurors., fince they chofe to leave their Country rather, 
than they would fubmit to the Conqueror. But fuppofing 
it to be true, that every Man in England had taken the 
Oaths to the Conqueror^ and thofe of his SuccefTors,' 
whom the Dodor calls Kings de Fa&o ; is he fure they 
did this upon a full Perfuafion and Conviction, that Air 
legiance was due to them upon the Sole Account of 
their being in the Throne ? The Dodtor knows very 
well, that many of the chief Nobility, and great Num- 
bers of the Gentry were in Arms againft Henry IV. chiefly 
for this Reafon, becaufe he was not their Lawful King. 
Now this was a plain Declaration, that they thought 
the Oath they had taken to him, did not oblige them ; 
and confequently it is evident, they had no Notion of 

(g) Old. Vitalis, 1. 4. p. 507. UJtro p. 641. & I p. p. 725. ^nd for their 

in ex'iUum aliqui profugiunt. Q^uidam goU Services in that Country, they were 

longinquas Regiones adierunt, & mili- for many Tears maile choice oj for the Em- 

tiae Mexij Imperatorts Conjlar.tinopolitani peror of ConftantinopleV Guard. See 

fcfe audafter obtulerunt. Et p. 508. Mr. Camden'; Britannia, in the Chapter 

Exules igitur ylnglorum favorabilitbr a conctrning the Noj-mans. j^nd to this 

Crtcis fufcepti funt, & NormamicU ]e- pttrpoje is Mr, SeldenV following Ohfcr- 

cionibus, qux nimium Ptlajgis adveifa- vaiion ; (Mare daufum, ]. 2. c. i. p. 184. 

bantur, oppoliti funt. Auguftus Ale- Engl. Fol.) Jn Times paji the Emperor of 

lius urbem, quz Chevetot dicitur, Angiis Conflantinople was wont to have tmjlj 

ultra Byzumtitim capit condere ; fed ni- Guards called Barrangi, cnnftantly attend- 

miriim infeftantibus Norrttannls, eos ad ing his Per/on, who nere talten out o/Eng- 

urbem Regiam rcJuxit, & eifdem Prin- land,-*; ^ppMr; ow< o/Nicetaj Choniates, 

"cipale Palatium cum Regalibus thefauris ( Hift. Grsec. 1. 2.) And G>dinu» aljo, 

tradidit. Hk igitur de causa Saxenes who wm Keeper of the Palace, writes, (De 

AnAi loniam cxpetierunt, & ipfi ac hse- Ofiiciis Conftantinop. ) That they were 

redes eorum fecro Imperio fideliti r fa- wont to Jalute the Emperor with a loud 

mulati funt, & cum magno honore inter f^oicc, 'lyy.^iviri, in the Englifli Tongue: 

1 hraces Cxfari, fenatui, populoque cha- Vide etiam Du Cange Gloff voce fiai- 

ri nfque nunc perftiteiunt. Et vide I.7. rangi. 

U ' the 

74 ^^^ Hereditary Right of the 

the Doftor's Conftitution : For had that been a known 
and eftablifhed Dodtrine, it is abfurd to imagine, fo 
many eminent Perfons (liould agree in affigning that for 
the main Ground of their Quarrel, which was moft di- 
redly contrary to Law, and therefore as unpopular a 
Realbn, as could poffibly be given. When Men take 
up Arms againft the Government they have liv'd for 
fome Time peaceably under, they have always thought 
it prudent to juftify fuch Actions by fpecious and plau^ 
lible Pretences ; and, I believe, it will be hard to in- 
ftance in any Infurre^tion, which has not appealed to 
L-aw and Equity, for Countenance at leaft, if not En- 
courageraent. But if the Do6tor*s Opinion is to pre^ 
vail, there could not be a more impudent Rebellion, 
than that, which was maintained againft Henry IV. (ince 
it was grounded upon this illegal Fojitlon^ That he was not 
King de Jure, though he vcas in full PoJfeJJion of the King' 
dom. Upon this Prefumption therefore, that Men can- 
not zdi fo contrary to the Principles of com.mon Senfe, as 
to engage in a Confpiracy againft an eftablifh'd Govern- 
ment, upon Reafons notorioufly coutradiftory to that 
Confiitution they pretend to maintain ; the Doctor's Ad- 
verfaries have taken the Liberty to affirm, that his Do- 
ctrine was not known in Henry IV.'s Reign : And what 
{h) Defence, HOW does the Dodor anfwer to this ? Why, he {h) tells 
p- 45> 48- us, Firfi^ That it could be no better, than a fham Pre- 
tence, if ever made ufe of by them ; for the Right Heirs 
had all fubmitted to Henry IV ; and therefore certainly it 
was no fmall Crime for Subje&s to begin a War with their 
Prince^ and throw a Nation into Blood and Confujion^ when 
they had no Reafon for it ; and this was what they did^ and 
what they had no Reafon to do^ &c. And, Secondly^ He 
fays, that Owen Glender^ the Earl of Northumberland^ &c. 
did not make War againft Henry IV. for the Sake of the 
Right Heir, but upon quite different Motives. 

Firfl-i He affirms, that the Right Heirs to the Crown had 
all fubmitted to Henry IV ; and therefore the Taking up 
. Arms againft him upon the Pretence of their Title, was 
unreafonable, and unjuftifiable. But did the Dodor 
confider, that the fir ft Confpiracy againft fle«r)/ IV. was 
during the Life of Richard II, in order to reftore him 
to the Crown ? And will he fay, that the Refignation 
made by that Prince, during his Imprifonment, was 
'  . free 

Cfomt of England aprted, &:d. * "ji^ 

free and voluntary, and fuch as efFe6luainy releafed his 
Subjeds from their Allegiance to him ? I know very 
vvel), that Richard II. was prevail'd with to declare, that 
his Rejignaticn was voluntary ; and I am not ignorant, ' 
that it is thus entered upon the Rolls of Parliament : But I 
have a better Opinion of the Dodor, than to believe, 
he will fo far approve of that infamous Ad of Violence 
and Injuftice, as to attribute any Authority to it ; if he 
fliould, I muft referr him, for his Satisfadion, to the Re- 
cords of Parliament, where he will find the following 
remarkable Paflages, very worthy of his Regard ; and 
therefore fit to be frequently recommended to his Confi- 
deration. (i) And where certain Perfins of eml^ riotous^ 0) Rot. 
and feditious Difiojition^ joyed in Rumour and rebellious No- ^"^•^•^'^''• 
•velties^ adhering to Henry IV. late in Deed^ and not of 
Right^ King of England, after his Unrighteous^ Vnlawful^ 
and Detejiable Vfurpation and Intrujion^ againji his Faith 
and Liegeance to King Richard II. his Righteous^ True^ and 
Natural Liege Lord^ murdered with great Cruelty and horrible 
Violence^ in an outrageous and heady Fury^ the Right Noble 
and Worthy Lords^ John Montague, late Earl of Salif^ 
bury,; and Thomas, late Lord Le Defpenfer, and other 
true Subje&s and Liegemen of the faid King Richard, il%\ 

Item. Ralph Lumley^ and others^ were cruelly Jlairt 

and murder d by Henry IV, in Beed^ and not of Right ^ 
King o/" England, for the true Faith.,. Vuty^ and Alle^ 
giance., that they bare to the Right Noble Prince King Ri- 
chard II, «^f. By Virtue of which Authorities I lliall 
venture to fay, that thofe, who took up ArmiS for Ri^ 
chard II. (notwithftanding his pretended Rejignation) had 
a good and righteous Caufe ; and therefore the Dodor 
has unjuftly caft upon thera the Afperfion of hdng fedi- 
tious , and unreafonable Men. Vl'ell ; but after Ri- 
chard IL's (^ Death, he is confident the following Infur- {i) Defenccf 
regions againft Henry 1 V. were not capable of any Jufti- ^' '^'^' '^^' 
fication ; for the Earl of March (the only Perfon who 
could pretend to a Right to the Crown) never laid any 
Claim to it : (J) So far from it^ that he took the Field for (O'luJ- 
Henry IV, ag^/«/? Owen Glendor; a Sign he had fur-^'"^^' 
rendered his Title. 

Now, with all the Doctor's Accuracy, I am afraid 
he is unfortunate in this Piece of Hillory : For (m) Roger fw) sir vv. 
Earl of March dying at the End of Richard II.'s Reign, £;£]f 


-^6 ' The Hereditary Right of the 


his eldeft Son Edmund was then but Six Years old ; and 
conlequently («) under Ward all Henry \Vh Reign : And 
Sir ip) William Du^dale tells us farther, that he was but 
Ten Years old, when he headed the Herefordfoire Men 
in Oppofition to Owen Glenlor; an Age certainly too 
young, to render the Refignation of a Crown of a ay Va* 
lidity. Befides, why muft the Earl of /^arcfe's Heading 
an Army againft Owen Glendor^ be neceflarily interpreted, 
as a Declaration in Favour of Henry IV.\ Title ? The 
Doftor fliould remember, that King Henry was not of 
his Opinion ; for when he was ask'd to ranfom (p) the 
Earl of March^ (who had been taken Prifoner by Owen 
Glendor in that A6lion) {q) he made Anfwer, That the 
Earl of March was not taken Prifoner for his Service; 
but willingly fuffer'd himfelf to be taken Prifoner, 
becaufe he would not a6t againfl: Owen Glendor ; and 
therefore he would not ranfom him, nor redeem him. 
But to put this Matter for ever out of Difpute ; we 
have an Ad of Parliament upon Record, which exprefly 
commends thofe, who (after (r) King Richard\ Death) 
continued their Faith and Liegeance, according to their 
Duty to God, and to the Laws and Cuftoms of the 
Realm of England^ to Edmund Mortimer^ then Earl of 
March^ {s) next Heir of Blood to the fame King Ri- 
chard. And likewife it is there faid, that Ralph Lumley 
and others were cruelly flain and murder'd by Henry IV. 
in Deed, and not of Right, King of England^ for the 
true Faith, Duty, and Allegiance, that they bear to the 

( » ) Thii is tvident from Mr. RymerV ( o ) Sir William DugdaleV Baronege. 

Foedera & Conventiones, &c. Tom. 8. (p ) It m ohfervahle, that King Hemy 

For p. 268. :5° Hen. Qjjarti, A. D. 1402. took care to appoint Commifflontrs to treat 

Sir Hugh Waterfon is appointed Cover- Txith Owen Glendor for the Ranfom of 

mur of the King's young Children, and al- the Lord Grey of Ruthin, fcon after he 

fo of his Kin/men the Earl of March and nas taien Prifoner ; by Tthich means he 

his Brother : And, p. 591. lo'' Hen. v^as qmily fet at Liberty for locoo Maris, 

Ciparti, the Cuftody of ftveral Mannors Rymer'j Fcedera, &c. Tom. 8. p. 279. 

in Dorfetfhire ts granted to Henry Prince His Refuftng therefore to do the fame for 

of Wales, till Edmund Mortimer Earl the Earl of March, could proceed from no 

of March is of full Age. P. 608. The Earl other Reajon, but this Jeamfy of him, or 

of March and his Brother were firfi com- his Friends. 

mitted to the Gifiody of Sir John Pelham, ( ^ ) HallV Chron. fol. 20. and Holinf- 

allomng him '^oo Marks rjtry Tear ; but head, p. 521. Wallinghara, ( ad A. D. 

Henry IV. in the Tenth Year of his Reign, 1402. ) fays. The Earl of March was then 

commits them to the Cuftody of his elde/l taken, proditione mediante. Stow fays. 

Son, granting him the fame annual Sum. That, when it came to Martial Affairs^ 

And, vide p. 639. ]o. Harding alfo in the Earl of March'? own Archers turnd 

his chronicle, cap. 194, 196. fays, Roger their Hands again]} them they Jhould have 

Earl of March being flain in Ireland, defended. Stow'j Annals, p. 327. 

22^ Ric. 2. left two Sons very young. J. (r ) Rot. Pari. I. Edw. 4. 

' How fays the fame ; Annxih, p. ^i p. (/)Ibid. 

t right 

Crotvn of England afferted, &e. ^7 

Right Noble Prince King ^/V/?^r/H. in his Days; anci 
after his Deceafe, unto Edmund Mortimer^ late Earl of 
Aiarch^ &c. I leave it now to the Doii^or to confiJery 
whether thofe Noblemen, who took up Arms in De- 
fence of the Earl of Aidrch\ Title, -were gu'dty of no 
JhiaJl Crime^ and had no reafon for fo doings which yet he 
has been pleafed with great AfTuranee to affirm. 

Secondly^ He (?j maintains, that Owen Glendor^ the Earl 
of Northumberland^ &c. did not make War againft Hen- 
ry IV. for the Sake of the Right Heir; but upon quite 
different Motives. Let us now therefore enquire into 
the Truth of this Aflertion. He («) fays, T hat Owi:i\ 
GlendorV W^ar began with a R'tot^ and ended in Rtbellwn. 
>Jow, though I am not at all concerned, whether this be 
true or no ; yet if any thing can be faid in that WelJJ? 
Gentleman's Vindication, 1 hope I may do hitn Juftice 
without Offence. 1 fhall beg Leave therefore to recom- 
mend the Perufal of the following Paffjge, extradfed 
out of the Notes of the Learned and Judicious Antiqua- 
ry, Robert Vaughan of Hengwrt Efq; {%) 

' Sir David Gam (j) was wholly devoted to the Intereli 
' of the Duke o^LancaJire ; upon vy hich account it was, that 
'■ Owen ap GryfydhVychan (commonly called Owen Gljn-Door) 
' was his mortal Enemy. This Owen had his Education at 
' one of the Inns of Court, and was preferred to theService 
* of King Richard \l^ who'e Scutifer {as Walfingham favsj he 
' was. Owen being aflured, that his King and Mafter Ri- 
' chard was Depofed and Murder'd, and withal {z) provo- 
' ked by feveral Affronts, and Wrongs done him by the 
' Lord Grey ot' Ruthin his Neighbour, whom King Henry ve- 
' ry much countenanced againft him, took Arms ; and look> 
' ing upon Henry as an Ufurper, caufed himfelf to be pro- 
' claim'd Prince of Wales. And tho' himfelf were {aj de- 

( t ) Defencf, p. 45, 4S. Glendor frjl b oh out in 'Rirhard ihe Sc> 

(a ) Ibid. p. 45. comi's 'lime ; and ihat the Lord (irey pie- 

( AT ) See Mr. LhwydV jjdiit'wns to fuming upon Hemy the Fowih s Favonti 

BreckjiocXniiie, in the laft Edition «/ Kas gutliy of the ftrft Acls oj Hojiility a- 

Camden'i Britannia. g^^"!^ Owen Glendor : // thli Account 

(y) 13" Hen. Quarti, Luellyn ap m true, the Doclor ti rmch mifinjurmcd, 

HoKell, the Father of David Gam EJ<}; nhen he makes Owen the yi(gref,or, and 

procures a Commijjion from Henry IV. to ylmhor of this Riot, as he u pleafed to 

treat tdth Owen G'cndor /or the Ranfoi/t call it, in Henry the Fohrih's Reign. See 

of his Son Ddvid G:{m,thcnO\va\'sPriJo- his Defence, p. ai^. 

ner. RymerV r'a:d<r:i,&c. I'om.i.p.y^^. (a) DrA'awcUfays th^ fame^ in Owen 

(z,) P/. To well, in h-'s Hifiory of Gwyjieth, p. 213. but then he confcjfis, 

Wales, ajfures its, That the Ouarrtl be- (ibid.) that he mas defcen-led by FiM^les 

fxeenihe Lord Gicy of Ruthin and Oweu from Owen Gwyiieth Frince of Noith- 

X 'fcended 

[8 The Hereditary Right of the 

^ fcended paternally but from a younger Brother of the 
' Houfeof Powis ; yet fas Ambition is ingenious) he finds 
' out a Way to lay Claim to the Principality, as defcend- 
' ed (by a Daughter) from Lhewellyn ap Oryfydh^ the laft 
' Prince of the Britijh Race. He invaded the Lands, 
* burnt and deftroyed the Houfes, and Eftates of all 
' thofe, that favoured and adhered to King Henrys Slc!^ 
I F this Account may be rely'd on ; whatever Rebellion 
Owen Glendor was guilty of, certainly it could not be 
againft Henry IV ; for he never own'd him for his King; 
much lefs did he ever fwear to him. And it is obferva- 
ble, that in fome of thofe Papers, figned by him as 
Prince of Wales^ (which are preferved and printed by 
Mr. Rymer, in his Volumes of Fcedera^ ConTjentiones^ ^c.) 
he never calls him (b) other, than Duke of Lancaftre. 
With refpedt therefore to Henry IV, he was truly a Non- 
juror ; and cannot be charged as a Revolter ; a Name, 
which the Doctor thinks he has a Right to beftow upon 
all, that took up Arms in this Reign. It may be faid 
indeed, that his Taking upon himfelf the Title of Prince 
of Wales^ arid dating all his Writings according to the 
feveral Years of his Primipatus^ was no lefs, than an In- 
vafion of the Sovereignty of the Kings of England over 
Wales ; and therefore may well be term'd an A6t of Re- 
bellion : But if it was fo, he was artfwerable for it only 
to the Earl of March^ to Vvhom only he could be a Re- 
bel, and not to Henry IV. And then it deferves to be 
corifider'd, whether the Earl of ^/^rc^'s fcj voluntary 
Surrender of himfelf to Owen^ (if Henry IV. himfelf is to 

Wales, and hy his Mother from Rees ap in Prifon, hmd mith Iron Chains : From 

Theodor Prince of South- Wales, p. 216. n hence it may v>ell be inferrd, that Owen 

Lelaiid ( Itinerar. Vol.- 5. p. 36._) maks could not thmhe a Friend to the Earl of 

him to be defcended i>-o«> Lluelin ap Jor- March's Qufc, who had Jo little RefpeB for 

warth Prince of ^// Wales, by a Daughter. his Perfon. All that 1 cm fay in this Mat- 

{b) Particularly in the Treaty made be- ter is, That Henry IV. (in the Parage 

iw«» Owen Glendor {by his Ambajfa- before cited) believed the contrary; and 

dors Griffin Young Br. of Laws, and John alledged it as a Rcajon for his not ranfom- 

Hanmer his Coufin and F.Jq; ) and the ing that Earl, that rtillingly and de/igaedly 

King of Prance, they exprejly unite them- he threro himfelf into OvvenV Hands j 

felves againfl Henry of Lancaftre their nhick being allowed to be true, it is not 

common Enemy. Anno 5 lien. 4. Ry- eafy to conceive, that O^^en fhouJd lay 

njer. Tom. 8. p. 356, 365. him in Chains. Befides,'Wa\iingh:imfays 

(c) It muft be confeffed, that one of the e.vprejly, (p. 367.) That the Earl oj March 

JReaJons given by the Earl of Noiihunibei- joind nuh Owen againjl King Henry 

land and his Son, for their War again/} and alfo married Owen'.f Daughter ; bJt 

Henry IV. vias, becauje he did not take this laft Particular ii not much to be 

, care to ranfom Edmund Earl of March, credited, upon the account of the Earl's 

who had been taken Prifoner by Owen Age; iho' I find Holinlhead belikVes it 

Glendor, and n as at that Time cruelly kept p. ^21, and Siov/,-^. 220. ' 


Cromi of England afferted, &c. 7^ 

be credited) and the fc/j gocxl Correfpondence betwce'ti 
that V/e\jh Gentleman and my Lord ?ercy^ (the profefTed 
Friend of the forefaid P^arl, as I fhall fhortly (hew) may 
not amount to a Probabihty, that he prefumed upon the 
Rightful Heir's Confent (as far as he was then capablt^ 
of giving it) for aiTuming that high Title. This is 
what 1 think may juftly be pleaded in Behalf of Ovceii 
Gkndor ; and if this Point is allowed me, 1 fhall theii 
think it no longer a Queftion, whether his Quarrel 
againft Htnry IV. was chiefly founded upon that King'^ 
Ufurpation ; which the Doftor has thought fit utterly 
to deny, (e) From all which duly conlidered, 1 may 
juftly inferr, that the WelJIjmen at that Time were a very 
formidable Body of Nonjurors ; being (f) entirely united 
in their Enmity againft the Houfe of Lancaflre.^ not only 
in Wales.^ but in every Part of England^ where they refi- 
ded. hor (g) we find it complain'd of in Parliament^ 
that the Weljh Scholars in both Univerfities, left their 
Colleges ; and the Apprentices in London^ and elfewhere, 
their Mafters, in order to engage themfelves in the 
Quarrel of Owen Gkndor. And a few Years after, ( h) 
John Trevor.^ Eilhop of S. AJapb., approved fo well of his 
Countrymens Cauie, that he deferted H^ar^. W„ upoa 
that Account. Ov. '  •- 

(d) PJac. Coron. 7 Hen. 4. n. 1 2. which he mujl mean the oppofite  Inter efi 
It is faU, the Earl of Northumberland to the Houfe of Lancanre., Life of Hen- 
rroi in a Confederacy with the Rebels of ry VIII. p. 375. And a great Ornamtnt 
Wales. And Walfincham fays, (Hift. to the Bench at this lime, has publicity 
Angl. p. 368. ) That the Lord Vercy, See. declared his Opinion to this purpofe, ttpon 
marched into Shropftire vfith a De/ign a memorable Occajion. The Tint^wi^Jays 
to join Owen Glendor, and the Earl of he, vcere ahays Men of (Enrage and Si/i- 
March ; who is mentioned by Sir Wil- eerily, and yet *f Refentment • iho' Hert- 
liam Dugdale {from Stow) to haVe been ry IV. and Henry V. were maniAl Princes^ 
nith the Lord Percy in the Battle of and had a Hatred againji the Rritains, be- 
Shrewsbury. 5;e /iZ/b RymerV Feed. &c. eaufe tJjey perfevered in their Duty to Ri- 
Tom. 8. p. 313, 314. cbard It.. Kho km their rightful, tho' itn- 

(e) If wat Owen Glendor pretend- fortunate King, and made'-mnj} [cicndnhns 
ed had been trne, that the Principality and reproachful Laws againji them : 7\t 
of Wales belonged to him by Right of ft is Ttorth Remark, that thofe Kings had 
Blotd ; his Cafe veonld Jiill be tftore ca- nevtr peaceable or happy Deys, until thry 
pable of an Apology, whilfi an Vfurper reconciled themfelves to ihiit Crest People^ 
ivoj upon the Throne of England. But I than ruhom none had more emimmtly ftgna^ 
find Dr. Powell will by no m:ans aUow liz^cd their conjlunt Loyalty to their Right- 
of this Pretention, p. 318. who affirms, ful King. Mr.Vxicts Speech againji the. 
That Mortimer Earl of March had the Grant of Part of the Principnlity of 
bejl Title by Birthright to the Principa- Wales to the Earl of Portland, p. 14. 
tity of Wales, as nell as to the Crotfn (g) Rot. Pari. 2 Heu. 4. 15. 

of Englaivi, p. 315. ' (« ) Walfingham. Hift. Angl. p. 370. 

(/) ^'fy Lord Herbert fays, the Wdfh- and Godwin de Prxful. 
men ddhert^ 10 the Houfe of Yorkj by 

B E F O R B 

'So The Hereditary Right of the 

Before I conclude this Story of Ovcen Glendor^ I 
beg Leave to correct a Miftake concerning him, which 
all our common Chronicles and Hiftories have fallen in- 
to; and that is, (i) "That in the Tenth Year of King 
" Henrys Reign, Owen Glendor being driven to fuch Mi- 
'' lery, that in a manner he defpaired of all Comfort ; 
" he fled into defert Places, and folitary Caves, where 
'^ being deliitute of all Relief and Succour, dreading 
" to ftiew his Face to any Creature ; and finally, lacking 
" Meat to fuftain Nature, for meer Hunger and Lack of 
" Food, he miferably pin'd away and died. '' Now we 
have very good Evidence, that this Story is falfe ; for 
in {k) the Eleventh Year of Henrj/lV^ we meet with Or- 
ders to march againfl: Orven Glendor^ and attack him : (/) 
And in the Thirteenth of the faid King a CommilTion is 
iflued out for the Redemption of Da^id Gamme Efq; at 
that Time Owens Prifoner. Befides, we are well alla- 
red, he furvived this Prince, and continued his Hoftili- 
ties againft his Succefifor; for in the (w) Third Year of 
Henry ^.z Comraitlion was ififued out for a Treaty 
with him and the Weljh^ in order to bring them to Obe- 
dience; and about (n) half a Year after, the fame Com- 
miffion is renewed to Sir Gilbert Talbot^ to conferr with 
Meredyth ap Ovcen^ the Son of Owen de Gkndourdy^ in or- 
der to the Pacifying of the laid Ovpen^ and the Weljh Re- 
bels, by Oflfers of Pardon, if they defired it, ^'c. 
Thus it is manifell: Owen Glendor was in. no defpicable 
Condition in the Middle of Henry V.'s Reign : How 
long he afterwards lived, and in what CircumOances he 
died, no Hiftories that 1 have hitherto met with, do in- 
form us : But tliere is Reafon to believe, he never made 
his Submiffion to the Houfe of Lancafier; becaufe (o) in 
Henry Vl.'s Reign a levere Ad of Parliament paffed, in 

( i ) Tljefe are Holinfhead'i PPbrds, it you it movie he ordeyned, &c. that ali 

p. 5:56. and Stow, p. 338. JndiUmtnts againfl the faid Owen he af- 

(k) Rymer. Fo«lera, Tom. S. p. 6o3. firmed. See. and be effechal to bind tin 

(Ij Rymer. ibid. p. 75 3. Heirs of the faid Owen. Confiderin? 

(m) .Rymer. Totn. p. p. 283. alfo, that the faid InfurreUions, Relet- 

C»J Rymer. ibid. p. 330. lions. Sec. imagined and done by the faid 

Co J Rot. Pail. 9 Hen. 6. 32. Plcafe Owen, nere not only in DtflruBion, and 

it the Lords Spiritual and Temporal, to be ^nyentij]i.ment of the Riall Efiatf of the 

remember' d of the great InfmreUions, Re- jaid King Aiii, but alfo of the Prince, 

'be/lions, and horrible Treafons imagind that Time our Liege Lord, that laft puj} 

and done by Owen Glendourdy o/Walys, fro this Life, and of all the Bramhes of 

againfl the Royal Majefiy of King Henry, the Siock Riall, &c. and fjinlly in Deflru- 

Jiiel to our Sovtreign Lord the King that liia» of all Engliih Tonpue for ever~ 

now is^whtreof he wm indited, &c. Pleafc more, &c. 



Cromt of England ajferted, &c. 8l 

which his Crimes are recited, and all Indiftment?, Judg- 
ments, ^c. made or given againft him, are confirmed. 

I N the next place, the Earl of NorthumberlanJ^ his 
Son Hotfpur^ and the Earl of Worcefter his Brother, fall 
under the Doctor's Indignation ; for he does not fcruple 
to charge their Revolt from Henry IV. with Ingratitude, 
and Envy : And iit a word, is very poiitive, fpj they 
did not a£t upon Principles of Loyalty to the Right 
Heir, but quite different Motives. This muft be con- 
feffed to be an Accufation highly reflecting on the Ho- 
nour of that very ill uftrious and noble Family. Hotfpur ' 
efpecially methinks, might have challenged Ipme Reve- 
rence from the Dodor, whofe {q) Valour is ftill remem-** 
ber'd with Pride by his Countrymen, and well defer ves 
to be immortal. The Dodor, however, is refolved to 
give him no Quarter; but as he is the firft Enemy, that 
dnrft ufe him fo contemptuoufly ; I doubt not, but he 
will have Reafon to repent of his Error, which I (hall 
naw endeavour to make him fenfible of. 

I N order to this, I (hall beg Leave to lay before the- 
Reader an Extract taken from a [r) Manufcript Copy of 
'^john Harding^ Chronicle, omitted in the printed Edi- 
tion of that Author; which, together v/ith fome addi- 
tional Obfervations, will, I imagine, not a little contri- 
bute to the Vindication of thofe noble Lords. The Ex- 
tradt is as follows : ,, - 

" Forafmuch as many Men mervaile gretely, why 
" the Erie of Northumberland^ and Sir Henry fercy his 
" furft begottyn Son, and Sir Thomas Percy Erie of Ifor- 
'' cefier^ were Supporters to King Henry IV, to have his; 
^' Heritage, and to take King Richard to havedepofe him, 
" by (trong Honde: Truly I the Maker of this Books 
" was brought up fro Twelve Year of Age in Sir Henry.^ 
" Percys Houfe to the Battle of Shrevosbury ; where I 

(p) Defence, p. 43^ 46, 48. Mr. Camden'; Account. Britannia, in 

\cj) A greater Proof rvat never given NorthumbeHand, p. 850. The Battle of 

0/ fjf>f Englim /^rf/(wr, than in the Battle Homyldoii itas a few Tears after fought^ 

of Otterbourne, otherwife caked Chevy- by the fame Lord Percy ; in rt hieh Ik rout- 

Chace, (at the latter End 0/ Richard edtht^on, and fooi Archibald Doug- 

the Second's Reign) when Henry Percy, las, their General, Prifoner. ^ 

i/ilu Hotfpur, ixho commanded the Eng- (r-)Bib]ioth.Harley,-42. g. ii.fol.i'52. 

lifh, Jcas at lafl laien Prifoner by Mont- Mr. Camden alj'o in his Hijhry of thiis 

gomery, {Ancefior to the prefent Earl of Earl (jf Nordiumberland arid his Son, at 

i.g\mion.) In this AEliori'^ i\\mm'Do^fx- 'he End .of Northumberland, re/frrj ;?' 

las the Scotch General, and the greatefi John Harding'; Mantij'cri^t Chronicle. 
Part of his Army, vtere Jlain. This ts 

Y "was 



Thefe Arti- 
cles are in La- 
tin in the 
MS. which I 
have thought 
thd' they were 
lefore printed 
in HaJl'x 
Chronicle, and 

tieWdkary Right of the' 

was with him ai^nied of Twenty Five Yere of Age ; 
as I had been before at Homyldon^ CokeJatae; and at di- 
vers Rodes and Fields^ with hira ; and knew his In- 
tent, and had it wretyn. Wlierefore 1 have titled in 
this Bobk, that for Triith the Caufe, why they rofe 
agenft him, may evermore be know. Their Ouarrell 
was fo fweet, devout, and by good Advyle and Coun- 
feill of Mafter Richard Scroops Archbifliop of Tork (for 
whom God Almighty hath Ihewn many Miracles' 
fith th^H Time hitherv^^fd) and alfo by Cotinfeill of 
divers ofher Lords, that difteyned him, and were 
bound to htm by their Letters and Seal's, which I 
' faw and had- in kepying, while I was with him. And 
all theii" Quarrel! they fent unto King j^enry m the 
Field, tvretyn under the Seales of their three Arms, 
by Thomas Kriaytori and Roger Sahayne Squyers of Sir 
Henry Percy ^ which Quarrell novC' followeth next after. 
' W E Henry Percy^ Earl of h'orthumberland^ Conftable 
of England^ and Warden of the Weft-Marehes towards 
Scotland y Henry Percy our firft born Sou, Warden of 
the E^ft-Marches of England towards Scotland^ and 
Thonias Percy Eirl of Worcefier^ Procurators and Pro- 
tectors of the Commonwealth before our Loft.DjEsus 
CHtCist our Supreme Judge j Do fay and affirm, 
and intend to prove pe^fonally with our Hands on this 
inftant Day againft thee Flemy Duke of Lancaflre, toge- 
ther with thy Accomplices and Followers, unjuftly cal- 
ling thyfelf Kmgoi Engldndy without a Title of Right, 
but only by the Treachery and Violence of thy Party : 
That \Vhen thdu after thy Banifliment didft enter Eng^ 
land^ and cameft to Doncafire^ thou didft: then fwear to 
us upon the Holy Gofpels, then by thee touched and 
kifled, that thou wouldeft in rid wife claim the King- 
dom bi: Royal State, but only thy own proper Inheri- 
tance, and thy Wife's in England ; and that Richard^ 
who was then our Lord the King, (hould reign for the 
Term of his Life, being difeded by the good Advice 
of the Lords Spiritual and Temporal : But thou didft 
imprifon thine and our King in the Tower of London^ 
until he refigned, through Fear of Death, his King- 
doms of England and France^ and renounced all his 
Right in the forefaid Kingdoms, and other his Lord- 
' fhips and Lands beyond the Seas. By Colour of which 


Crown of England ajferted, &d. 8 J 

Refignation and Renunciation, by the Advice of thy 
Adherents, and the pubHck Cry of the Common Peo' 
pie, brought together to Weftm'infier by thy Means^ 
and the Help of thy Accomplices, thou didft there 
crown thyfelf King of the forefaid Kingdoms, and 
didft caufe all the Royal Caftles and Lordfhips to be 
feized into thy Hands. Wherefore thou art falfe and 

hem^ ' We fay and affirm, and do intend to prove, 
That whereas thou didft (wear to us upon the Holy 
Gofpels, at the fame Time and Place, that thou wouldft 
never permit any Tenths to be levy'd of the Clei^y, 
nor Fifteenths of the Laity, nor any other Taxes to be 
railed in the Kingdom of England (s) for the King's life, (,) Ad opus 
whilft thou livedft, but by the Confent of the Three JT'*];;'-,^; 
fcftates in Parliament; and this only upon a preffing ufe !^0cc4- 
Occafion, for the Defence of the Realm, and not o- ^'""• 
therwife. Thou, on the contrary, in Contempt of thy 
Oath lb taken, haft caufed to be levied very many 
Tenths and Fifteenths, and other Impofitions and 
Taxes, as well of the Clergy and Laity, meerly through 
a Dread they had of thy Royal Majefty. Wherefore 
thou art falfe and perjur'd. 

Item^ ' We lay and affirm, and do intend to prove. 
That whereas thou didft fwear unto us upon the faid 
Gofpels, at the fame Time and Place, that our and thy 
Lord, King Richard^ (hould reign as long as he lived 
in the Enjoyment of his Royal Prerogatives; thou 
didft caufe our and thy Lord King Richard, traiteroufly 
in thy Caftle of Fontfra&, without the Confent or 
Judgment of the Lords in the Kingdom, for fifteecu 
Days and Nights (a Wickednefs not to be heard by 
Chriftians without Horror) to remain in Hunger, and 
Thirft, and Cold ; and thereby didft kill and murder 
him. Wherefore thou art falfe and perjur'd. 

Item^ ' We fay and affirm, and do intend to prove. 
That thou at that Time, when R'lcljard our antl thy 
King was fo put to Death in that horrible manner, as 
is before related ; thou didft feige and ufurp the King- 
dom of England^ with the Name and Honour of the 
Kingdom of France^ contrary to thy Oath ; from Ed- 
mund Mortimer^ Earl oi March ^ the then next and di- 
rect Heir of England and France ; who Immediately and 


84 The Hereditary Right of the 

' Hereditarily aftei- the Deceafe of King Richard^ ought to 
' have fucceeded. Wherefore thou art filfe and per- 

Item^ ' VVe fay and affirril, and do intend to prove, as 

'above; That whereas thou didft fv;ear at the fame 

' Place and Time, to fiipport and niaintain the Laws 

'and good Cuftoms of the Kingdom of England ; and 

' afterwards, at the Time of thy Coronation, didft again 

^'fwear to keep and preferve tliem inviolabfy ; thou 

^ treacheroufly and agai'nft the Law of England^ didft 

"* write to thy Fautors in every County in England^ to 

' choofe fuch Knights for each Parliament^ aS fhould be 

' agreeable to thy Pleafure : So that in thofe thy Par- 

' liaments no Juftice could be obtainM againft thy Will, 

'upon any Complaints; altha' we had very often peti- 

-m:.o ' tioned thee, according to the Confciences God had 

' given us; for the Truth of which we call G o d to wit- 

' nefs) and the venerable Fathers Thomas AmndeJl Arch- 

tbiftlop of Canterbury^ and Richard Scrope Archbifhop of 

^ Tork. Wherefore it behoves us to feek for Remedy, be- 

' fore our Lord Jesus Christ, by a ftrong Hand. 

- Item^ ' We fay and affirm, and do intend to prove^ 

' That whereas Edmund Mortimer was taken by Owen 

yClendorm moftcil Fight, and cruelly by him held in 

'^^Prifon and Iron Chains, in thy Caufe; whom thou 

f didft proclaim to be taken treacheroufly, and would'ft 

'^notfulfer him to be rarif6m*d, either by thyfelf, or by 

(^)TkUrd^ y^ci his (t) Kinfmen, and Friends; whereupon we have 

cyTcliied''' 'lately treated with the faid Owen for his Redemption, 

m^ll'the ' ^^ ®"^ ^^'" proper Coft, and for the Benefit of Peace be- 

Sifter of ' twceu thcc aud him; upon which Account thou didft 

^mer E^°T ' conftdcr US as Traitors ; and for the future didft fecretly 

«/ March. ' coutrive our Ruin and final Deftrudion. 

' For thefe Reafons we do mortally defy thee, and 

' thy Accomplices, and Adherents, as Traitors, and Sub- 

' verters of the Commonwealth, and Kingdom ; and In- 

' vaders, OpprefTors, and Ufurpers of the Rights of the 

^^ true, and direct Heir of England^ and France; and we 

'* intend to prove it this Day by the Force of our Arms, 

^ Almighty God affording us his Afliftance. 

" ^To thefe Articles John Harding immediately fub- 

joins the following Lines. 


Cro%vn of M^?;imd ajfened, ^Q. 8? 

^ Fo?.ASMUCH as many Men have been inerred, and yet 
ftonde in gret^ Errpure and Cohtraverfy y holding Opi- 
nion froward^ how thai; Edmonde Erie of Lancafire^ Lei- 
cefire^ and Derby^ was the elder' Son of Kyng Henry l\L 
croi^kebacked, unable to have been Kyhg^ ' for the  
whkh^ Edrvard his younger Brother was niade Kyng . 
by, his Aflfent, as fome Med have alleged, by art uq- j 
trew Chronicle feyned in the Tifrie of Kyng Richard 11. ., 
by John of Gaunt Duke of Ldncajire^ to mske' Henry his , 
Son Kyng, when he faw he might not be eh6fe for , 
Hqlre appariant to Kyng Rkhard. ' "'^\'^1 3 

'So it is, that I Jo/m Harding^ the Maker of this , 
Booke, herdethqErle of JVbrf/?«/nWW, that ivas flarn 
at Bramham'M.c(0/^ in the Tinie of Kyng Heniry IVj 
faie, how the Tape Kyng Henry, upon St.Mathew Dale, •s'^^^z/j join 
afore he was made Kyng, put forth that fame Chroni- ^^^ifjf^^g, 
cle, claiming his Title to the Crown by the feld Ed- nkk, ct^^i 
monde^j upon which all the Chronicles of Wejimynflh^ 
and of all other notable Monafteries, were had in the 
Council of Wefiminfire^ and examined among the Lord^,N 
and proved well by all, their Chronicles, that the Kyn^ 
Edward was tHe elder Brother, ' and the feid! Edmonde the ^ 
younger Brother, and not Croukebackpd, nother mayrii- 
ed^ but the feemlieft Perfon o(Enghnd\, except his, 
Brother Edward. Wherefore that Chronicle, Whidh 
Kyng Henry fo put forth, was adnulled and reproved. - 

'And then I herde the feld Erie faie, that the feid 
Kyng Henry made Kyng Richard.^ under DurelTe of Prifon,- 
in the Toure of London, in fere ofliis Life, t6 rilake a Re-, 
fignation of his Right to him ; and upon that a Renuti- 
ciation of his feid Right ; and they were declared in the 
Counfell : And in the Parliament at Weftmynfire, on the 
Morrow of $t. Michael then next following, what of his 
Might and hisWilfulnefle, and what by certain' Lords and 
Strength of the Commons, he was crowned agdtinft his* 
Oath made in the White Freer s at Doncajire:, to the feid 
Erie of Northumberland.^ and other Lords, agaihft the 

Will and Counfell of the feid Erie, and of his Son^ 
and of Sir Thomas Percy Erie of Worcefier. For which 
Caufe they died after, as I knew well ; for that tim6 
I was in the Field at Shrewsbury with Sir Henry Percy., of 
the Age of Twenty Five fee^' armed, and afop^ 
brought up in his Houfe, of Twelve Yere Age. 

2 Atsd 

S6 The Hereditary Right of the 

'Also I herde the feid Erie of Northumherland faie 
divers times, that he herde Dukeyofenof Lancaftre^ a- 
mong the Lords in Counfell, and in Parliaments, and 
in the Common-Houfe among the Knights chofyn for ^ 
the Commons, aske by Bill, for to have been admytted 
Heire apparaunte to Kyng Richard^ confideryng how 
the Kyng was like to have no Iflue of his Body. To , 
the which the Lords Spirituell and Temporell, and the 
Commons in the Common-Houfe, by v/hole Advyfe 
feide, that the Erie of Marche^ Roger Mortimer e^ was 
his next Heire to the Crown, of full Defcent of Bloody 
and they wolde have none other ; and asked a Que- 
ftion upon it, who durft difable the Kyng of Ifliie, he 
being young, and able to have Children ? For which, 
when the Duke of Lancajire was lb put by, he and 
his Counfell feyned, and forged the feyde Chronycle, 
that Edmonde fhould be the elder Brother, to make his 
Son Henry a Title to the Crowne ; and wold have had 
the feide Erie of Northumherland^ and Sir Thomas Percy 
his Brother of Counfaile thereof, for caufe they were 
defcendyd of the feid Edmonde by a Sifter ; but they ^ 

' Which Chronycle lb forge(3, the Duke did put in 
divers Abbaies, and in Freers, as I herde the feid 
Erie ofttimes faie, and record to divers Perfons, for 
to be kept for the Inheritance of his Son to the 
Crowne ; which Title he put furthe after he had Kynge 
Richard in the Toure ; but that Title the Erie Percy put 
Upon the Perufal of the foregoing Tranfcript, T 
perfuade myfelf, the Reader will be thoroughly con- 
vinced, FirJ}^ That the Dodor is much miftaken, when 
he tells us, that the Family of the Percys did not take 
up Arms for the Sake of the Right Heir ; fince the above- 
written Articles abundantly (hew, that they had the In- 
tereftof the (ti) Earl of March entirely at Heart ; and 
were chiefly animated to that hazardous Enterprize by a 

C«3 This is Uimife evident from the 
Soils of Parliament, rehere it is faid, the 
Earl tf Northumberland dechred to the 
^mhaffadors of the French King, Que a 
I'aide de Dieu, de le votre, & de plu- 
Iburs mes Allies, j'ay intention & fermc 
purpos de fuftenit le droit querele de 

mon Souvereine Seigneur le Roy Richard, 
s'il efl Vif ; & li mort eft, de vanger fa 
mort, * audi de fuftenir la droite que- 
relle, &c. Here the Copy of the Record, 
I made life of, breals off ; but it cannot be 
doMbted, but the Earl of March was meant. 
Plac. Coron. 7 Hen. 4. N. p. 


Croim <?/ England afferted, &CC 87 ^ 

Senfe of the Injury done to him, and a full Convldlott, 
that it becarrte them to venture every thing, in order to 
procure him Juftice. Secondly^ It is from hence evident, 
thatthey charge if^nr)/ IV. with a Breach of his folemn 
Oath to them, by which he had obliged himfelf never , 
to attempt any thing againft the Right, Honour, or 
Safety of King Richard ; upon Confidence of his due 
Performance of which Oath, they came to his Affiftance. 
So that here is an Original Contra^ pleaded, by the Vio- 
lation of which, on the King's part, the Earl of Nor- 
thumberland and his Family thought themfelves entirely 
releafed from all manner of Obligations to him. They 
declare, it was never their Intention to deprive Ri^ 
chard 11. of his Crown ; but that on the contrary, it was 
their conftant Refolution, to maintain him in the Throne, 
and after his Deceafe to affert the Title of the True 
Heir : That Henry therefore was guilty of Perjury by 
ufurping the Crown, and therefore forfeited all manner 
of Right to their Service. Out of a Senfe of this their 
Duty to King Richard^ and the Earl of March^ they op-, 
pofed, as far as they were then able, the Duke of Lanca^ 
fires Coronation ; but (x) finding themfelves incapable ix')]ohti 
of making any effedtual Refiftance, it muft be zcknoW'^^l^l^'f' ^ 
ledg'd, they fubmitted with the reft, and liv'd fome 7";&f Percys * 
Years in Obedience to him, as their King ; and if the ^f^r'rt 
Doflor will have it fo, fwore to him too. But if this -f", fm'>P"g. 
was an unjuftOath; if they themfelves thought it fo, LncafirV 
when they took it, fas is evident from the Articles before^ T'^^iJ'"/ 
mentioned) will the Doctor blame them for not keeping 
it ? He will fay perhaps, they were inexcufable then in 
taking it; if they knew it to be an unrighteous Oath : 
1 cannot help that; neither will it be worth the Doctor's 
while to infift upon it ; fince the main Point in Contro- 
verfy now between us is. Whether they may be juftified 
for taking up Arms againft Henry IV ? 

However, that I may omit nothing, which may be 
ferviceable for the Defence of that noble Family ; I defire 
Leave to put him in mind of a certain Principle, gene- 
rally received in the Times we are fpeaking of, and 
which for fome while before had a very prevailing In- 
fluence over the great Men of this Kingdom, whenever 
they found themfelves in Danger ; and that was, that all 
Actions done through Fear of Death, were pardonable 


88'^ the Hereditary Right of the 

at ieafl: if not lawful. And it caftnot be denied, but 
our Courts of Juftice had been fo favourable to Pleas of , 
that Nature, before Henrj/l V.'s Reign, that great En-, 
couragemerit had been given for the frequent life of 
them. After the Battle of E'vejhdm^ when that famous j 
(y) Aft was made for the Settlement of the Kingdomiy7 
called Vlkum de Kenilworth ; thofe? that had been drawn ; 
in to affift the Barons againft the King through Fear,/ 
had but a fmall Fine fet upon them. And in(2) Ed^' 
trarrflll.'s Reign, vjhen Walter de Alington and his Confe-s! 
derates had forced fome Perfons, and made them fwear i 
to defend the Prizes they had taken ; the Court admit-- 
ted thefe Perfons to bail, and difmifled them foonaftenh 
But the moft remarkable Inftance to this Purpofe hap^ . 
pen'd in the Beginning of this very Reign, which is now / 
under our Confideration ; for when the Judges, whor; 
had given illegal Advice to Richard II, and thereby were 
the Occafion of fome (a) Ads, that paffed in the Twenn- 
ty Firft Year of his Reign ; when they, I fay, were caU^ 
led to account for it in Henr) IV.'s Parliament; theyj 
made ufe of this Excufe, That whatever they did, wasi 
for Fear of Death. Upon which the Comnwns prer»' 
fented this mentiorable Petition : (h) < 

Item 'Your Commons pray, that neither the Lords f 

* Spiritual or Temporal, nor thfe Juftices, may be al- 

* low'd for the future to excufe themfelves, by faying,: 

* they did not dare to afl: or fpeak according to Law, and 

* as their true Meaning was, for Fear of Death, or be- 

* caufe they were not free of themfelves ; for they are 
' bbliged to keep their Oaths, notwithftanding any Dan- 

* ger of Death or Forfeiture. 

From whence I think it is plain, that this had been 

. the common Argument made ufe of by the great Men, 

in Defence of their Illegal and Difloyal PradHces ; and 

fi\ 49 Hen. 2. ^^^ ^^^ ferments, que de doutcr Mort 

<■*) 2iEdw.V Coram Itege Rot. ou afcun forfaiture. 

'ioi Line - The King anjmrs. Le Roy tient toutz 

( 4 ) CokeV Mit. 1. 2. c. 2. 1" Seigneurs & Juftices pur hommes fuf- 

(i) Rot Pari. I. Hen. 4. 57. Itelh, ficiests & loyauJx, qmls ne luy veiHent 

due les Seigneurs Efpirituells& Tempo- donner autre Gonfeil n'advis, qui ne 

lells. ne les Juftices ne foient refceux foit honefte, & joufte, & profitable pur 

entempsadvenirpurleurexcuferadire, luy & le Royalme ; & fi nully fe voet 

qu'ils n'oferent fiure ne dire le ley, ne compleindre «n efpeciall en temps ad- 

leur entente pur doute de Mort,ou qu'ils vcnir del contrary, le Roy le terra re- 

ne font litres de eux mefme« Pur ceo fontmer & aYnfcflder 
qu'ils font pluis tenB^ de ref(?rt de igar- 



Croiv/i of England ajferted, &c. 8p 

Cuftom had fo far prevail'd, that hitherto it had the 
good Fortune to be thought juft and reafonable ; I may 
fay too, that it continued in the fame Credit in the fol- 
lowing Reigns, notwithftanding this Petition of the Com- 
mons: For as Henry IV, in his Anfwer to it, fays no- 
thing, which implies a Difapprobation of that cuftoma- 
ry Excufe ; fo we find, that in Henry V.'s Time, thofe 
that had affifted Sir John Oldcafile (c) only out of Fear of (c) CokeV 
Death, were difcharged : And laftly, by this Plea, John ^"fi- 3- '• ^' 
Nevill^ Marquis of Montacute^ procured his Pardon from 
Henry VI. at his Reftoration, for being in the Service of 
Edward IV ; for it is faid, {d) he came to his Parliament (d) HoiinC- 
excufing himfelf, that for Fear of Death he had taken King p! '/^gf'^"* 
EdwardW^xty which Excufe was accepted. Agreeably 
therefore with the allowed and approved Maxims of 
thofe Times, the Submiffion and Oath of the Fercys to 
Henry IV. has a fair Pretence to a favourable Conftru- 
dtion ; fince it was done purely to fave their Lives and 
Fortunes, which otherwife muft have been in imminent 
Danger. And this I would not be thought to mention, 
out of any great Reverence or Efteem I have for fuch an 
Apology ; but only to fliew, that thofe Gentlemen did 
not adt difhonourably, according to the Sentiments of 
the Times they liv a in, when they took an Oath to 
Henry IV, which at that very Inftant, they believed they 
ought not to keep. This was the common Error of that 
Age, into which, we have obferved, the very Sages of 
the Law themfelves had fallen ; and therefore it is not 
to be wonder'd at, if Noblemen (who rarely meet with 
Cafuifts, that advife them againft their Intereftj have 
not more Wifdom or Honefty, than they that make 
thofe Vertues more particularly their Profeflion. Had 
they liv'd in thefe Days of Light and Knowledg-e, I 
confefs, I fhould have found it difficult, to fay any 
thing in their Defence ; for the Doctrines of Chriftianity 
are now fo well underftood, that whoever fhould ven- 
ture to maintain the Lawfulnefs of doing Evil for the 
Advancement of any Temporal End or Purpofe, would 
draw upon himfelf at leaft the Difpleafure of all good 
Men, and hardly efcape a publick Cenfure. 

After, all, it may perhaps give Offence to the Do- 
6tor, that I have charged HenrjlV. with a Breach of his 
Original Contra^ , and admitted that as a good Reafon for 

A a the 

§0 The Hereditary Right of the 

the Percys Taking up Arms againft him : But fuiely, if 
there is any ground for the Notion of a Contrail between 
a prince and his Subje6ls ; it muft be, when an Elected 
King is on the Throne, who owes that high Dignity en- 
tirely to the Choice of the Nobility, and the Confent of 
the People ; and (e) fuch a one, and no better, was this 
King Hmry^ whatever may be alledged to the contrary. 
He could not certainly pretend to a jnfter Title, than his 
Predeceflbr King Stefhen ; who yet confented to an In- 
ftrument of Government, in which he exprefly calls him- 
felf an EMed King ; t and therefore the Hiftorians tell 
us, that (/) Robert Earl of Gloucefier^ and the Bifhops too, 
did Homage to him conditionally, that he would main- 
tain them in their Rights and Privileges; and we know 
very well, that his Violation of them was pretended as a 
Reafon for their Revolt from him afterwards. 

Since therefore the Affiftance given to Henry IV. by 
the Percys ('by Virtue of which he was enabled to feize 
the Crown) was purely the Effect of that Confidence 
they repofed in his Promife and Oath, that he would ne- 
ver dethrone King Richard^ nor put him to Death; I 
would fubmit it to the Doftor's Confideration, whether 
a Truft fo notorioully broken and abufed, did not au- 
thorize thofe Gentlemen to feek for Juftice by Arms and 
Violence againft him. That Henry 1 V. heaped great Ho- 
rlours upon the Earl of Northumberland^ giving him the IJIe 
ofMan^ and conftituting him Conftable of England^ I very 
readily own ; and this he certainly did, that he miglit 
the better fecure that Great Family to his Intereft : ISut 
then I think this is a Proof, that they were not influenced 
by any Motives of Advantage to themfelves by their fub- 
fequent Revolt, (as the Doctor calls it ) for how profpe- 
rous foever the Event had been, they could not well have 
promifed themfelves greater Acceflions to their {g) Ho- 
nours and Fortunes, than they either actually enjoyed^ 
or might reafonably have hoped for from the Bounty and 
Favour of King Henry. 

T H u s far 1 will prefume to fay, I have clearly pro- 
ved, that the Infurreftions againft Henry I'M. were oc- 

(f) J. HardingV Chron. c. ipd thumberland. RymerV Fcedera, Tom. 8. 
(j) W. Malmsbury. p. 289. ^nd. many other grejit Eflates,Sir 

(g) Be/ides the Honours hefore-men- W. Dugdale'; Barmage in Percy Earl of 
t'toned, all the Lands of the Douglaffes in I^rthuuiberland. 

Scotland were granted to the Earl of Noi- 


Cromi ^f England afferted, &:c. ^i 

cafioned by a Profeffion of Fidelity to the Rightful 
Title ; to Richard II. whilft alive, and the Earl of March 
after that King's Deceafe ; and therefore the Authors and 
Promoters of them are much wrong'd by the Dodlor, 
when he fays, they afted upon quite different Mo- 

The next Commotions that happened in this Relgti^ 
were thofe of Archbifhop Scroo^^ and the Earl of Nor^ 
thumberland ; and that thefe were raifed upon the fame 
Grounds, their publick Declarations fufficiently teftify^ 
The Archbi (hop's Articles are (h) extant ; in the Pre- 
amble of which he fays, in his own Name, and that of 
all his Adherents, That having been hound by their Oaths to 
King Richard II. to bear Faith and true Allegiance to him^ 
as long as ha lived^ and his Heirs fucceeding him by juji 
Titk^ &c. They therefore, for fear of Perjury, percei- 
ving divers horrible Crimes and great Enormities to be 
daily committed againft the Church, the Laws of the 
Realm, as alfo againft the Perfon of King Richard^ and 
his Heirs ; do, Firfl^ declare the Lord Henry of Derby to 
be a Traitor to King Richard and his Heirs. Secondly^ 
They pronounce him Perjur'd and Excommunicate, for 
taking Arms againft King Richard^ and afterwards mur- 
dering him. In the Tenth Article they affirm, that they 
take up Arms for the fake of the Right Heir. Befides 
y. Harding tells us, That the Lord Percy\ Articles be- 
fore recited, were drawn up by this Archbifhop ; and 
another {t) Author, that liv'd at the fame Time, afifures 
us. That the Reafons, for which that Archbifhop was 
beheaded, were, F/V/, Becaufe he advifed Henry IV. 
to repent of his Perjury in fwearing by the Sacrament 
of C H R I s t's Body, that he would not rebell againft 
Richard 11. nor confent to his Depofition ; which after- 
wards he did. And, Secondly^ The faid Archbifhop de- 
fired the Crown might be reftored to the Right Line. 
Is it not then evident, beyond all Contradiction, that 
this Archbifhop took up Arms for the Right Heir ; and 
by his publick Declarations own'd to the World, that 
he thought himfelf bound in Honour and Confcience fo 
to do? And may we not then have liberty to believe, 

[h) In Fox'/ y4tls and Afommtnts, (i) Clement Maydflone de Martyricj 

 p. 591. and Mr. VVhartonV Anglia Sa- Archiepifcopi Scrope, in Mr. WhartonY 
CKi, /^e/. 2. Z'. 368. AngJiaSacra, ^0/. 2. 


p2 The Hereditary Right of the 

that He and the Fercys were true {k) Penitents, for ha- 
ving contributed to the Settlement of Henry W. upon 
the Throne ? The Dodor indeed feems to laugh at this 
Conceit of their Repentance, as a groundlefs Fancy ; 
and is (/) confident, that Men that acted upon fuch Mo- 
tives, as the Earl of Northumberland^ his Son Hotfpur^ and 
his Brother the Earl of Wofcefter^ ought not to be efteem- 
ed Penitents : But I have proved, that the Dodlor has 
fhew'd himfelf a perfect Stranger to this Part of Hiftory; 
otherwife he muft have known, that the true Caufe of 
their Quarrel againft Henry IV. was, that he was an 
ZIfurper; and they believed it to be their Duty, to place 
the Rightful Heir on the Throne. 

I T is a great Comfort to him however, that all thefe 
Lords and Gentlemen, who took up Arms againft Hen- 
ry IV. had before fubmitted to him, and fworn Alle- 
giance ; for he is only concerned to know, whether it 
has not been always the Cuftora, to fvvear to Kings de 
Fa^o: But if it has been the Cuftom to take fuch 
Oaths, he fhould remember, that it has been alfo the 
Cuftom to break them ; which the Dodtor knows to have 
happened in the Reigns of King Stephen^ and Henry IV. 
the two moft undoubted Kings de FaBo from the Nor^ 
man Conqueft ', and thus we are reduced at length to 
this Queftion, Whether the Dodor, or the chief Lea- 
ders in all the Infurredlions againft Henry IV. are rather 
to be credited ? If we muft believe the Do6tor, their 
Revolt was inexcufable, founded upon no rational Prin- 
ciples, and indeed was no better than downright Perjury 
and Rebellion : But if we may take the Word, the dy- 
ing W^ord of thofe Gentlemen ; they were perfuaded, 
that the Oath they had taken to Henry IV. did not bind 
them ; and that they were obliged in Confcience to force 
him from the Throne, for the fake of the Right Heir. 

(I) Holinftead, inhisChron. p. 529. Devotion, tiRthej were retrained hy Puh- 

sives Richard Scroop, Archb^op of lick Authority, (Holinfliead, p. 530.) 

York, the following CharaUer. "The Re- And therefore Henry V. upon his Accef- 

fpeEl Men had to him, cMJed them to liie fion to the Gown, thought it a popular 

better of his Cauje ; fmce the Gravity of thing, to five Leave to the People to pay 

his Age, his Integrity of Life, and incom- their accujlomed Honours to this Archhi- 

f arable Learning, with the reverend Afpeil Jhop's Memory, as J. Harding affures us, 

of his amiable Pcrfonage, moved all Men Chron. 21 1. He gave Leave then of good 

to have him in no fmall Eftimation. Up- Devotion aUMen to offer to Bijhop Scrope 

«« which account his Memory was held in exprejfe, without Letting, or any Que- 

fuch Efleem, that he was confidered as a ftion. 

Saint and Martyr by the People, who fre- (I) Defence, p. 46 

quentei the Place of hit Burial with great 


Croivn <?/* England afferted, &c. ^5 

Now the Do6lor may call thefe unrighteous, and unjuft 
Pretences, as long as he pleafes ; provided he will but al- 
low, that it is true in Fa£t, that they made ufe of fuch, 
and no other: which I am confident he will never be able 
to difprove. And then 1 think I may appeal to the moft 
byalVd Friend to the Do6lor's Caufe, Whether fo many 
Gentlemen of the firft Quality and Fortune in England^ 
could openly and avowedly have ventured their Lives 
for a Perfon out of PofTeffion ; had it been then a known . 
and undoubted Part of the ConlHtution, that whoever 
was in Pofleflion of the Crown, was a Rightful and Law- 
ful King. Had this been the received Doctrine of thoie 
Times, it is wonderful ftrange, we fhould meet with no 
manner of Notice of it in any of our Hiftories ; it feems 
incredible, that fo many Perfons of Eminency fhould 
prefume to a6t in open Contempt of it, to the manifeft 
Subverfion of a Fundamental Law of their Country ; and 
yet without the leaft Reproach from their Enemies upon 
that account. 

B u T I Ihould remember, that thefe fo often repeat' 
ed Reflexions muft needs be tirefome ; and therefore it is 
fit 1 (hould haften to another Subject. I would now only 
beg Leave of my Reader, to fet before him a fhort View 
of the Comforts and Bleflings, which attended the Do' 
6tor's Conjiituti&n , in this Reign of a King de Fa&o. 
Henry IV. had no fooner taken Pofleflion of the King- 
dom, but he was in Danger of lofing it by a formidable 
Confpiracy, fram'd againft him in the Heart of his King- 
dom : It is true, he had the good Fortune fpeedily to 
fupprefs it, and make an Example of its Authors and 
Contrivers : But frefli Troubles and Rebellions (as the 
Do^or calls them) ftill followed one another for many 
Years of his Reign ; and that evil Spirit of Refiftance 
continued to animate the Vf^eljh againft him, to the laft 
Period of his Life. Mr. Fox (m) tells us. The Time of (w) ^^t 
his Reign was far from being quiet ^ but full of Trouble^ ^'/voi.lfp*. 
Bloody and Mifiry. 590. 

. Such was their Defire of King Richard again, in 
the Reign of this King, that many Years after, he was 
rumour'd to be alive ; for the which divers were exe- 
cuted. For the Space of Six or Seven Years together, 
almoft no Year pafled, without fome Confpiracy againft 

B b the 

p4 7"!^^ Hereditary Right of the 

(«) chron. the King, 17*^' And (r?) HoIitSead conk ffes, he refignM. 
P-54I- in great Perplexity, and litile Pleafure. Thefe certain^' 
ly are admirable Proofs of the great Siibmiffion and 
Obedience, which was then paid to the Doctor's Confii- 
tut'wn ; and no doubt, the Tranquillity of this King'*}; 
Reign wall never be denied for the future, to be a live-' 
ly Inftance of the Authority of a King de Fa&o. 

1 SHALL now conclude thefe Remarks upon Hen- 
ry IV.'s Reign, with the following Reflexion of that 
(o) Jnhis very judicious Gentleman Sir Walter Baleigh. (o) 
hhHificrj7f Henry IV, rvhofe Title was rveak^ and his obtaining 
the World, f/jg Crown traiterous ; who brake Faith with the Lords at his 
Landings protejiing to intend only the Recovery of his proper 
Inheritance; brake Faith with Richard himfelf; and brake 
Faith with all the Kingdom in Parliament ; to whom he fcvore^- 
that the Depofed King JJjould live : After he had enjoyed this 
Realm fome few Tears ; and in that Time had been Jet upon on 
all Sides by his Sub'je&s^ and never free from Conjpiracies 
and Rebellions ; he jaw {if Souls immortal fecy and difcern 
any Things after the Bodys Death) his Grandchild Hen. Vi, 
and his Son the Prince^ fuddenly^ and without any Meny^ 
murder d : The Poffejfion of the Crown {for which he had 
caufed fo much Blood to be poured out) transferred from his 
Race^ and by thz Iffues of his Enemies worn and enjoy di' 
Enemies^ whom by his own Pra&ice he fuppofed^ that he had 
left no lejs powerlefs^ than the Succejfion of the Kingdom que- 
(iionlefsy by entailing the fame on his own Iffues by Par- 
liament. And out of Doubt ^ Humane Reafon could have 
judged no otherwife^ but that thefe cautious Provijions of the 
Father^ feconded by the Valour and Jignal Vi&ories of his Son 
Henry V, had buried the Hopes of every Competitor^ under 
the Dejpair of all Re-conqueji: and Recovery. I fiy^ that 
Humane Reafon might fo have judged ^ were not this Pajfage of 
Cafaubon alfo true ; A Day^ an Hour^ a Moment is enough 
to overturn the Things^ that feem to have been founded and 
rooted in Adamant. 

1 PROCEED now to Henry V.'s Reign, to whom, the 
Doftor is pcfitive, the whole Kingdom, without Ex- 
(p) tefemt, ceptioH, fubmittcd : The (p) Earl o/ March himfelf quietly 
P- 474^;? I- refigning up his Right to the Crown^ without making the leaji 
Attempt for the Recovery of it. But the Dodor ihould have 
known, that the Weljh were not brought under this King's 
Obedience in the Third Year of his Reign; whofe origi- 


Crovdn of England afferted, Kc. 5)^ 

rial Quarrel againfl: him was upon the account of his 
Title, as 1 have (hewn at large. And we are hire like^ 
vvife, from (^) unqueftionable Authority, that the Earl (4)Steihs. 
of March was engaged in a Confpiracy in this Reign, bridgfv gH 
in order to Depofe King Hewry, and fet the Crown upon W"""^ ^pud 
his own Head : That for this Purpofe he had agreed dcaT'&c.* 
with his Brother-in-Law the Earl of Cambridge" to 20 J°f" f- -p* 

I "I • 11 1 ' 9 3^** 

with him into Wales', where they intended to proclaim 
Harry of Lancaftre Vfurper of England. And the Earl 
of Cambridge declares, that the Earl of March had told 
him, that all his Cotlfejfors put him in Penance to claim 
that^ they called his Right. Eefides, we find this laid ... ■. 
Earl (r) pardoned by Henry V, for the Share he had in (r) Uyvaet. 
this Confpiracy ; which undeniably proves, the Dodof jo^"^; ' 
has ftrain'd a Paint in Hiftory, when he would perfuade 3o$- 
us, that Earl never laid any Claim to the Crown. Af- 
terwards, 'tis true, he gave Henry V. all imaginable 
Affurances of his entire Submiffion ; upon which he 
wa5 immediately employed by that Prince in the higheft 
Offices of Truft and Honour; and thofe he difcharged 
with great Fidelity, to the Time of his Death; which 
happened in the Third Year of Henry VI. During that 
Space of Time, I mean the Remainder of the Earl of 
Marchh Life; after he had made this Submiffion, I 
agree with the Dodtor, Henry V.'s Title had fome Foun^ 
dation : For to whomfoever the Rightful Heir fhall 
think fit to fwear Allegiance, and perform the Services of 
a dutiful Subjedl-, 1 Ihall make no Queftion, but every 
private and inferiour Perfon may very lawfully do the 
lame. And this I take likewife to have been the Cafe 
of the People of England^ for almoft the whole Reign 
of Heriry VI. For the Duke of Tork (who had the beft 
Pretenfion by Blood to the Crown) having bound him- 
felf by repeated Oaths and Obligations, to pay Obedience 
to him, as his Lawful Prince ; Who could reafonably 
be a Nonjuror^ after fuch an Example ? In this refped: 
therefore the Dodot muft do me the Juftice to acknow' 
ledge, lyield him up a Point, which he Teems to have 
very much at Heart. 1 allow it to be true, tliat Richard 
Duke of Tork, and his Son ( afterward King EdwardlV.) 
were under the ftridteft Ties and Engagements of Fideli- 
ty to Henry VI; thefe are Matters of Fad: too evident to 
be Gontefted; and I am entirely fatisfied, they may 


^6 The Hereditary Right of the 

(;) The fe- bc provcd f j) beyond all Poffibilityof Contradidion. But 
va-al Rcmn- ^j^g^ the DodoF Hiuft confcfs, that Henry V. and VI. 

cutttons of Ri- - — ' -^ 

Right to the Subjed's Allegiance by a different Title, 

chard Dirifo/ were K'wgs de Jure^ as well asdeFa&o; i.e. they had a 
X«'V."« ^" Right to the Subjed's Allegiance by a different Title, 
f^icpiiarly than tliat of PofTeffion ; and confequently they are not 

,%-5^jS Kings for the Doaor's Purpofe ; for the Queftion is not, 
Fortef.ue /» whether Princes do not become Lawful by the Ceffion 
ience of the'' of the Legal Heir ; this is granted, and allowed by his 
raftrelKbi Adverfaries ; but whether the bare PofTeffion of the 
Cotton. 0-' Crown, exclufively of all other Gonfiderations, can con- 
%^mi a- vey a Right to Allegiance ? Thus we fee the Dodor has 
mjfs to give given up Two of his Kings de Fa&o.^ which at other 

the Reader 4 t** ir* >^t c A tr 'o . 

/«// rierp of 1 irnes he leems to be very rond or, as main bupporters 
them in the Qf [^jg Imaginary Conftitution. 

isf^i!" "' But whatever the Dodor may lofe in this Point, he 
doubts not to gain in another ; for from hence he thinks 
it plain and undeniable, that Edward IV. and his Par- 
liament were to blame in calling Henry V, and VI> 
Kings indeed^ and not of Right ; as if this was the firft 
time this Diftindion had been ever ufed, and it had ne- 
ver before been thought of: Whereas the Judgment 
* See the givcn by the Houfe of Peers in the * Appeal of Richard 
M Pro- £)Qke of Tork^ was manifeftly grounded upon it : For 
7anfmb'd ccrtaiuly they would never declare the Right of the lat- 
^liZetRoTis' f^r to be indefeafible, had they believed Henry VI. to be 
App. N. 2. ' King de Jure. But how could they think it reaibnable, 
the Do6tor will fay, to give fuch a Sentence ; conlider- 
ing the Houfe of Tork had freely parted with their Right, 
by feveral folemn Oaths and Engagements ? Could they 
not renounce their Pretentions to the Crown, if they had 
pleafed ? and was not this effedually done by their fwear- 
ing Allegiance fo often to Henry VI? I anfwer; The 
Houfe of Peers, to whofe Arbitration this Matter was re- 
ferred, was of another Mind ; for after a full Hearing 
of all the Objedions, that could be made againft the 
Duke of Ttfri^'s Title, (among whkh his repeated Oaths 
of Homage and Fealty had been carefully and warmly 
CO Rot urged) it was (0 concluded and agreed by all the Lords, 
Hen", l^'fea. That the Title of the feid Duke 0/ York could not be defeated. 
»8. It is evident therefore, in the Opinion of that fupreme 

Court of Judicature, That the Duke of Tork was Itili at 
liberty (notwithftanding the Oaths he had taken) to lay 
Claim to the Crown ; and they thought themfelves bound 

t in 

6rowH of iBngland aprted, &c. 9*7 

in Juftlce to adjudge it to him. During the Time that 

the Duke of Tork^ who had the Hereditary Right, kept 

his Oath, and paid Allegiance himfelf to King Henry^ 

1 fee no Reafon, why the Subjects of that Time might 

not Lawfully fweaf and perform Allegiance alfo : But 

when the faid Duke claim'd the Crown as his Right of 

Inheritance ; then it began to be a Queftion, Whether 

the Subjedls were bound to pay Allegiance to the Law^ 

ful Heir, or to the King in Pofleffion, to whom they 

had hitherto paid it. The firft Article objefted 

againft the Dodor's Claim was, That the Lords fhould 

call to remembrance the Oaths they had made to King 

Henry ; to which the Sum of the Duke's Anfwer was, 

That no Oath ought to be Performed^ when it leadeth to the 

Supprejfion of Truth and Jufiice ; an4 he undertook to 

ftiew clearly, before any judge fpiritual, («) That the r*) Rot. 

Lords were bound to ajift him in Truth and Juftice^ notwith- e^ti^i^'"' 

fianding any Oath ef Feaute or other by him or them before 


The Oaths of the Lords made to King Henry might 
be excufable, by their Ignorance of the Fa5s neceflfary to 
clear the Right of the Lawful Heir ; by his not Claim- 
ing ; and by his fwearing Fealty to the King in Poflef- 
fion : But when the Claim was made publickly, and 
the Duke's Right to the Crown was evidently prov'd 
before the Lords ; then it was plain, that their Oaths to 
King Henry being againft evident Right, could not have 
any Obligation ; for it was a known Rule in the fpiritual 
Law, That [z) an Oath was not inftituted to be a Bond {x) beer, 
of Iniquity : And in that very Age theie Rules were in- qJ^^.*^'. ", 
ferted in the Decretals, (y ) That an Oath, taken in pre- ^-^^ Dg^J^ 
judice of a fuperiour Right, was not valid ; and that an t^i. Greg. 9. 
Oath due to one, but made to another, was unlawful ; o^ij, 22.^'*' 
and was to be performed to him, to whom it was due. 
Thus by the Canon Law the Oaths of the Lords were 

And as to the Duke's Oath of Fealty to King Henry^ 
according to the fame Canon Law, then univerfally Re- 
ceived, and the common Opinion of Divines^ He might 
be released from it, if it was taken by him to preferve 
his Eftate, Liberty, and Life. Tis m vain to make a 
Difpute about Force, or Durefs. 'Tis Notorious front 
the State of that Time, that if the Duke had claim'd the 

C € CrowDj 

p8 The Hereditary kighf of the 

Crown, or borne the Royal Arms, or refus'd to (wear 
Fealty to King Benry^ he had expos'd himfelf and Fami- 
ly to inevitable Deftrudion : To that Objedion he 
anfwereth thus himfelf, before the Lords ; (z) That he 
ahfiaimd for the Time from purfuing of his Right and Title^ 
for Caufes not unknown to all this Realm : The Danger of 
doing it was Notorious to all Men. Wherefore (a) as 
his Silence was no Ceffion of his Right; becaufe there 
was a fufficient Caufe of Silence : So his Oath of Feal- 
ty was no indifpenfable Renunciation of it, according 
to the {b) received Law and Dodrine of thofe Times ; 
becaufe it was extorted by unjuft Terror, and made by 
him fro mta r/ff rebus feruandis. King Henry could acquire 
no Right by exacting it ; becaufe his Requiring of it was 
Injuftice, and Ufurpation : And as to the Duke, tho' 
he ought not to have taken it, to gain or fave the World ; 
yet when it was taken, the Ipiritual Law relieved him : 
And the Pope adlually granted him a Difpenfation, which 
was then thought a fufficient Abfolution. 1 am far from 
allowing the Pope any Power of difpenfing with Oaths, 
or juftifying the eafy Relaxation of them by corrupt Ca- 
fuiftfy : But if we will judge of the Anions of Princes 
in Ages paft, and examine the Validity of them, we 
muft confider the Laws, Ufages, and Dodrines then Re- 
ceived, and judge accordingly. Mankind in all Ages 
hath had an Horror of Violence, and Ufurpation, as de- 
ftrudtive of Society ; and hath agreed to render the Ef- 
fects of them null, and invalid. Not Princes only, but 
all other forts of Men, have always thought them- 
felves free from the Obligations of Promifes and Oaths, 
attended with enormous Lelion, and extorted by Fear 
of lofing Eftate, Liberty, and Life; and (c) great Writers 
upon the Law of Nature do plainly affirm the Nullity of 
fuch Oaths. In (hort, if the Duke of Tory's Oath had then 

(*) Rot. Pari. ibid. n. t6. teceffores noflri Rom. Pont, arbitrati 

(a) Grotius de jure B. 1. 2. c. 4. fuiffe nofcuntur, qui tales a jurameiiti 
fe&.6. Qui fciens & prsefens tacet, vi- nexibus abfolverunt. Cxterum ut aga- 
deturconfentire,nificircumftantiaB often- tur confultius, & auferatur Materia de- 
dant, qu6 minds loquatur, metu eum jerandi, non eis ita exprefsfe dicatur, ut 
impediri. juramenta non fervent : fed fi non ea 

(b) Dec. Greg. p. 1. 2. tit. 24. c. 1 5. attenderint, non ob hoc funt tanquapi 
Vcrumin;ftione, ankSacramenti pro mortali crimine puniendi. Vide 
vinculo abfolvantur, qui iflud inviti Thorn. Aq. 2. 2* Qu. p8. 5. i™. 

pro vita & rebus fervandis fecerunt ; (f) Puffend. de jur. nat. lib. 4. c- 2. 

{lihil aliud aibitiataui, quatn quod An- f. S. 


Croivn of England afferted, &c. ^^ 

been tryM in any fpiritual Court, as he defir*d It might 
be ; he would no doubt have been acquitted of it. The 
high Court of Lords Spiritual and Temporal, his and 
their own Oaths notwithftanding,adjudg'd that his Title 
could not be defeated ; and this was the general Opinion 
of the Nation in thofe Times, that the Houfe of Tork 
had an indubitable Right ; and the much greater Part of 
the Nation was for it, fas all our Hiftorians agreej their 
Oaths to the Houfe of Lancafter notwithftanding. ; 

I F after all, the Doftor will perfift to affirm, that Rt^ 
chard Duke of Tork and his Son were indifpenfably 
obliged by their Oaths to Henrj VI, and could not pof- 
libly be difcharged from them by any Authority in the 
Kingdom, or out : This may be true, and yetthe Award 
of the Peers be confiftent with the Rules of Juftice and 
Equity; for they do not pretend to determine, what 
was fit for thofe Princes to do in Confcience ; but what 
they were bound to by the Laws of their Country, of 
which they were the proper Judges ; and therefore who- 
ever arraigns their Proceedings in this refpe(51:, does in 
Effect let up his own Private Judgment, againft the Pub- 
lick Senfe of the Nation ; (d) which in Modefiy Jhould be (d) r^; 
allowed to underjiand^ what the Confiitution was in their own ^' 7' 
Times^ better than we can at this Dijiance ; and in Charity we 
ought to believe^ that they a&ed agreeably to it. This I take 
to be the true State of the Cafe. The Duke might have 
ftill continued a SubjeCt, had he thought fit; and would 
his Ambition have futfer'd him to be fo contented in that 
Condition : But how could the Peers help it, if the 
Duke of Tork would not be fatisfied without his Right? 
All that became them, was to confider impartially the 
Matter referred to them : And fince at length they came 
to this Refolution, that he was flill at Liberty to claim 
the Kingdom, and ought to be put in Pofleffion of it ; 
who will prefume to fay, it was Arbitrary and Illegal ? 
If a private Subjeft fwears to one, who has wrongfully 
difleized him of his Eftate, that he will never attempt 
the Recovery of it ; the Law will put him in Pofleffion, 
if he applies to it, notwithftanding his Oath, which 
Religion perhaps would oblige him to perform. And 
thus it is in many other Cafes. If a Man lofes a Sum of 
Money at Play, beyond what the A6t of Parliament al- 
lows; and obliges himfelf by Oath to pay it; this may 


loo The Hereditary Right of the 

be a juft Debt in Confcience ; tho' the Law will not 
force him to difcharge it. In vyhich Inftance the Law 
does not pretend to annull his Oath ; but only with- 
draws its Affirtance from the Party, to whom it was 
made, as unworthy of any Aid or Countenance. And 
if the Law takes fo much Care of the Rights of Pri- 
vate Perfons, that they have not Power to alienate their 
Properties, by any Oaths or Conveyances, contrary to 
cuftomary Methods, and prefcribed Forms ; certainly 
we are bound to believe, that the Titles of Princes and 
Heirs to the Crown, are at leaft as ftrongly guarded 
againft any Injuries, which may be done them, even 
with their own Content. So that the Judgment of the 
Houfe of Lords in this Cafe feems plainly to reft upon 
this Bottom ; That the Oaths taken by Richard Duke of 
Tork^ did not amount to a Refignation ; neither could 
that be Legally and Validly performed, without a due 
Obfervation of the Form and Manner, requifite to be 
obferved upon fuch an Occafion. 

I T may now perhaps be demanded, how it is then 
poffible for a Right Heir to the Crown to refign his 
Title, if the Oaths and Submiffions of Richard Duke of 
Tork^ were not fufficient for that Purpofe. I anfwer, 
That a Legal and Effedual Refignation can only be 
made before, and with the Concurrence of the Three 
Eftates of the Realm ; which evidently appears from 
the Proceedings in this very Cafe of Richard Duke of 
Tork. For tho' the Lords would not allow, what he 
had done, upon any Confideration to be of Force to in- 
validate his Title; they were very fenfible it was then 
in his Power to do it efFedtually, in the Prefence, and 
with the Approbation of both Houfes of Parliament. 
And therefore, tho* they had declared his Title could 
not be defeated by any Objedtions hitherto urged againft 
(t) Rot. it ; yet they (e) thought it advifable for the Peace of the 
yt'^^f: Kingdom, that he fhould confent, that Henry VI. (hould 
remain in the Throne for his Life ; v/hich being agreed 
to, and publickly ratified in open Parliament : Then, 
and then only, could Richard Duke of Tork be faid to 
have made a fufficient and complete Refignation. And 
left it fhould be fufpeded I have kere deliver 'd a fingular 
Opinion, deftitute of all manner of Authority ; I hope 
the following Paflage out of my Lord Chief Juftice 


Crom^ of Enghnd aferted, &CC. loi 

Balis MS. Hiflory of the Pleas of the Crown^ will acquit 
me in this Point. 

(f) A King,^ that by Confent of Parliament takes another {fj iVr Mat- 
in Confortium Imperii, remains a King within the ^i^th [fSjlJac^^ 
of Edward III. U^e never had any Inflame thereof in this Coronx,MS. 
Kingdom^ but in that of Henvy II, who took his Son into a ''^'^' "■"' 
kind of fubordinate Regality ; fo that there was Rex Pater," 
and Rex Filius. But it is to be obfermd, that Henry II. 
did not divefi himfelf of the Sovereignty, as fome ham thought; 
hut refers d to himfelf the Liege, Homage, and Allegiance of 
his SubjeSis, yea and of his Son alfo: And although his Son 
were a King, yet he was a King but fubordinate to his Fa- 
ther ; and therefore, although he might be in fome refpe&s a 
King, in relation to the Subje&s, t,hat their Confpiring his 
Death might be Treafon ; yet he was but a Subje^ in refpe& to 
his Father; and his Attempt to eje^ his Father from his 
Kingdom, was Treafon. 

But this Communication of Sovereignty by the King^ could 
not be done without Confent of Parliament : For as a King 
cannot wholly rejign, or difmifs himfelf of his Kingly Office, 
without Confent of Parliament ; fo neither could he, without 
fuch Confent, divide the Sovereignty. It was a wife Expref- 
fion of Queen Elizabeth, when Jhe was urged to marry ; jhe 
reply d. She was married to her Kingdom ; there is a facred 
Bond between the King and his Kingdom, that cannot be dif 
folved without the free and mutual Confent of both in Par^ 

In foreign Kingdoms there have been Inflames of voluntary 
Cejfions or Rejignations, which pojfibly may be warranted by 
their feveral Conftitutions ; but by the Laws of England the 
King cannot rejign his Sovereignty, without his free Confent^ 
and the Confent of Parliament. The Rejignations that were 
made by Edward II, and Richard II, were extorted by Force, 
Violence, and Opprejfion, to give a Countenance to thofe Vfur- 
pations, that fucceeded them ; and were ABs of high Dif- 
loyalty and Injujiice, and not to be mention d without Dete^ 

I T muft be confefifed, that my Lord Chief Juftice 
fpeaks only of the Refignation of a King, not of the 
Right Heir, who is not in Pofifeffion ; but furely the 
People of England have an Intereft in the Right Heir, 
as well as in the King ; and have been fworn to one, as 
well as the other ; and therefore it behoves them to be 

D d well 

102 The Hereditary Right of the 

well afifured, that Refignations made by fuch Heirs, 
- are entirely free and voluntary ; which cannot be done 
to general Satisfaction, but in open Parliament. Be- 
fides, if Oaths fhould be allowed as fufficient to convey 
a Right to whom they are taken ; it could not be doubt' 
ed, but Kings might part with their Crowns out of Par* 
liament, as well as the Doctor believes the Duke of Tork 
did with his Hereditary Title. So that all things duly 
confiderM, I may venture to fay, That no Kingdom of 
the World has declared itfelf more clearly and exprefly 
in Favour of the Rightful Heir out of Pofleffion, and 
confequently againft the Authority of a King de Fa&o^ 
than our own has done in the particular Cafe now before 
us : For here we find Judgment given againft a Family, 
that had been in Pofleffion of the Throne near Sixty 
Years; that had been frequently and folemnly owned 
and recognized by the Submiffions and Oaths of all the 
great Nobility, and even of thofe very Perfons, who 
laid Claim afterwards to the Crown : From whence the 
Inference is very plain and obvious; that by the Confti- 
tution of England^ the Rightful Heir cannot deftroy his 
Title by any Oaths of Homage or Allegiance ; but he is 
ftill at Liberty to revive his Claim, when he thinks con* 
venient ; which can never be entirely extinguifhed, but 
by his free and exprefs Renunciation in open Parliament. 
Cg) nm, The (g) Dodor fays indeed, that this was a partial 
P-54' Declaration of the Houfe of Lords ; King Henrj/ being 
then a Prifoner, and the Duke of Tork^ by a late Victory, 
abfolute Mafter of the Parliament. But our prefent 
Difpute is about the Validity and Obligation of this 
Judgment ; not the Means, by which it was obtained ; 
which might be unrighteous and unjuftifiable, and yet 
the Ads effedted by them, of good Authority; for o- * 
therwife Magna Charta itfelf muft be rejected, as Null 
and Void ; fince it was moft certainly extorted by Arms 
(^) Quam- and Violence. It is {h) enough to our Purpofe, That 
fatis 'Sir this Judgment was given in a full Houfe of Peers ; 
ceribus prx- That King Henry's Friends were not only at Liberty, but 
Rot! Pari, ^vere earneftly {t) defired by the Chancellor to obje^ 
gjHeaVi. every thing, that might be proper for the Fortifying of i| 
(0 iHd. his Title ; That this Judgment was the Foundation of 
the Agreement between Henry VI, and Richard Duke of 
Tork^ which was aflented to by both Houfes, and con- 

Crow;^ of Enghnd ajjerfed, lie. ' 105 

firmed by King Henry himfelf. And laftly, it ought to be 
confidcred, that this Judgment was never reverted orcen- 
fured as Unjuft or Illegal ; but has always been efteem- 
ed as a Rule for future Proceedings, if the like Cafe 
fliould ever happen. Some of our (k) Chronicles, it is ^i^L^w 
true, give us fuch a Hiftory of the Duke of Tork's Beha- Hoiiilihead 
viour in this Parliament, that one would really think, that-'^""" ^"*" 
King Henry was a Prifoner, during the whole Seffion ; 
or never appeared, or had any thing to do in it ; for 
they tell us, that the Duke of Tork placed himfelf in the 
Royal Throne, at the Opening of the Parliament ; and 
made a long Speech to the Peers, with all the Air and 
Authority of a King ; but furely the Records are more 
fafely to be rely'd upon, which reprefent Matters quite 
otherwife. There we find^ that the Parliament began 
their Seffion in King Henrys Prefence, who was feated ^ 
in his Throne, in the Painted Chamber of his Palace at 
Wefiminfier. And fome Days after, the Claim of the 
Duke of Tork was prefented to the Lord Chancellot, not 
by the Duke himfelf, fwho is not mentioned, as appear- 
ing in the Houfe, while the Debate continued) but by 
his Counfel ; who alfo returned an Anfwer to the Ar- 
guments urged in Favour of Henrys Title. So that 
thofe Stories of his Seating himfelf in the Throne, or 
Laying his Hand upon it, and then Claiming it Perfonal- 
]y, are Fictions contrived purely for the Entertainment 
of thofe, that delight in fecret Hiftory. All that I Ihall 
now add, is only this ; That by Virtue of this Judg- 
ment, Edward Earl of March claimed the Crown, upon 
the Duke of Tory's Deceafe ; and foon after obtained Pof- 
feffion of it ; and then his Father's Words were remark- 
ably verified : (0 That though Right for a Time may (/^ Rot.Parl. 
refi^ and be put to Jilence ; yet it rotteth not^ nor Jhall nof^^'="-Vl. 

I H A V E now finifhed my intended Examination of 
the Dodor's Lift of Kings de Fa&o^ from the Conqueft 
to Richard 111 ; and I perfliade myfelf, have made it at 
leaft doubtful, whether moft of them had not a better 
Title, than he is willing we ftiould believe : However, 
I think I have proved, that the Obedience, which was 
paid to them, could not be the EfFed: of the Dodor's 
Principles. Surely, if there ever was Occafion for them^ 
it was in this Cafe of King Henry VI, when his Friends 


4 The Hereditary Right of the 

were earneftly defired by him, to think of every thing, 
that might be proper to defend his Right againft the 
Claim of Richard Duke of Tork : But among the fe- 
veral Arguments urged for his Defence, (now extant up- 
on Record j it is evident, the Doftor's weighty Reafons 
were either never thought of, or elfe were over-ruled ; 
which could never eafily have happen'd, had they then 
been looked upon as any Part of our Conftitution, or 
even as confiftent with it. 

Before I dole this Chapter, I muft intreat the 
Reader to obferve, that among the Reafons affigned for 
paying Obedience to the (m) Dodor's Kings de FaSio^ I 
have not mentioned the Interpofition of the Popd^s Au- 
thority ; which, as mean as he is pleafed to think it then 
was, never failed to be employed in all publick Contro- 
verfies in thofe Times ; and was not a little confider'd. 
It were eafy to prove this by many Inftances ; but at 
prefent 1 fhall only defire the Dodtor to remember, that 
thofe Princes, whom he has inferted into his Lid of Kings 
de Fa&o^ took care in the firfl: place, to fortify their Title 
by the Pope's Confent and Approbation ; which could ne- 
ver have deferv'd the Pains they ufually employed in pro- 
curing it ; if it had not been of fome Advantage to them, 
in the Opinion of their Subjedls. WilUam the Concjmror 
brought with him into England a Banner, that had re- 
ceiv'd the Fopss Bleffing ; and he as well as his Sons, 
who fucceeded him, as refolutely as they oppofed the 
Papal Encroachments in feveral refpefts, were always 
defoous to maintain a good Correfpondence with the 
Holy See. (n) King Stephen made it a Part ol his Title, 
that he was confirmed by the Fope in his Kingdom ; and 
1 have already (hewn, that the whole {o) Body of the 
Bifhops fwore Fealty to Stephen a lecond Time, in Obe- 
dience to the See of Rome ; and not long after abfolutely 
refuled to crown Eufiach'ms^ Stephens Son, purely by 
Virtue of an Order they had received from the Pop?. 
What Regard was paid to the Pope's Authority in King 
'Johns Reign, the (pjDo£tor feems to be fenfible : And 

{m) Defence, p. 25, &c. him a Bull, in nhich he confirms him in 

(«) Richardus Hagulftad^nfis (aJ the Throne. Pf^hichBuU may there he Jeen, 

,A. D. 1 1^6.) fays, the Pope not doubting, tis alfo in Rymer. Foedera, Tom. i. 

but that King Stephen had promifed Obe- {0) P. 54. 

dknce to him at his Coronation , grants (p) Dejence, p. 26. 

I beg 

Croi}in d?/'EngIand ajferted, &c. 105: 

I beg leave to put him in mind, that the French Author, 
who wrote in Verfe An Account of the Troubles of Ri- 
chard II, of which he himfelf was a Witnefs, {MS. Bibl, 
Harley., 68. c. 2^. fol.) fays, Archbijhop Arundell procured 
a Bull from the Pope, which he openly read to the People^ in 
which the Pope offered a Plenary Indulgence to all^ that Jhould 
dffiji the Duke of Lancaftre againfi Richard II. The 
Three Henrys of the Houfe of Lancafire thought it no 
fmall Advantage to their Caufe, that they had gain'd 
the Popes for their Friends. At laft indeed his Holi- 
nefs, by a ft range piece of Ingratitude, is (q) faid fo far 
to have abandoned King Henry VI. as to have abfolv'd 
RichardDuke of Tor^, from all his Oaths to him ; a Cir- 
cumftance very worthy of the Do6tor*s Notice; becaufe 
he expeds from his Adverfaries, that they fhould prove.^ 
the Popes had ever put in Pra&ice their pretended Power of ab» 
fohing SubjeSis from their Allegiance^ (r). Laftly, the De* 
votion of Henry VII. to the See of Rome.^ and how much 
he depended upon the Pope\ Confirmation of his Title, 
are Matters of Fa<9: fufficiently known. In the Begin- 
ning of his Reign a Bull is difpatched into (s) England^ 
in order to fecure him on the Throne ; which he thought 
of fuch Confequence, that the ArchbiQiop of Canterbury 
was obliged to fend his Mandates to all the Biftiops, to 
enter the Contents of it in their Regifters, of which a Co- 
py will be found in the (f) Appendix^ taken out of the 
Regifter of Dr. Stillingtcn Bifhop of Bath and WeUs. In 
iheC«) i:^th Year of his Reign this Bull was renewed; 
and a frefh Confirmation of his Title granted by Pope 
Alexander VI, under Pain of Excommunication to fuch, 
as (hould, upon any Pretence whatfoever, difturb the 
Peace of the Nation, and create Troubles to his Govern- 
ment. And therefore all our Hiftorians have taken care 
to affure us, that Henry VII. put a great deal of Confi- 
dence in thefe Bulls. The Truth is, none of our Prin- 
ces have been fo kind to Popes^ as thofe that have had the 
weakeft Titles ; becaufe they found it their Intereft to 
purchafe the Favour and Protection of the Papal See by 
large and unreafonable Grants and Conceffions. Thus 

(q) HolinfheadV Chronicle^ p. 642^ (t) Appen. N. 3. 

650. (u) Dr. Brady'; Htfiery of the Skf^ 

(r) Defence, p. 25. cejjion, p. jpi. 

(s) Rymer. Feed. Tom. 1 2. p. 2^7. 


lo6 The Hereditary Right of the 

King Stephen^ to gratify the Pope for his Indulgence irl 
confirming his Title, fuffers his Legate (x) to exercife a 
Degree of Authority in England^ which was never be- 
fore endured ; and (y ) our Author tells us, that Appeals 
to Rome firft took their Rife from his Reign. Henry IV. 
being under the fame Neceflity of courting the Pope\ 
Afliftance, to fupport him in his unjuft Pofleffion of the 
Throne ; was not wanting in his Compliments to him : 
Therefore in the Beginning of his Reign he procured 
himfelf a Power (z) to moderate or repeal the Statute ofProvU 
firs ; and the firft A(5t of Parliament for burning of He^ 
reticks^ has been always thought to be the Effed: of his 
Gratitude to the Holy See. Neither was Henry VII. lefs 
forward in dutiful Returns to his great Benefador ; for 
my Lord Bacon fays, (a) He ever applied himfelf with much 
RefpeB to the See o/Rome. And it mufl be confefTed, up- 
on all thofe Interruptions of the Succeflion, the Church 
of Rome fo well found her Account, that fhe never failed to 
encourage them, as the propereft Occafions of making 
her Encroachments on the Crown ; and therefore in that 
refpeft, as well as in relation to the difadvantageous Bar- 
gains they were ufually forced to make with Potent 
Peers, in order to engage them in their Intereft ; Mr. 
Frynn had reafon to make this Reflexion ; (b) That 
Kings created^ and Jet up meerly by Parliaments^ and their 
own Power in them^ without any True Hereditary TitJe^ 
ha've feldom anfwered the Lords and Commons Ezpe&ations 
in the Prefervation of their jufi Laws and Liberties^ and 
Anfwers to their Petitions. As a Proof of which, 1 ftiall 
only beg Leave to take Notice of one particular In- 
ftance, among the many of this Nature, which the 
Reigns of Henry IV, and VII. furnifh us with. Thofe 
that are acquainted with the Hiftories of thofe Princes, 

(x) The Bijhop of Wincheftcr, as the dura Lcgatus eflet, malo fuo crudelit>r 

Pope's Legate, had the BeUnefs to cite his intrufif. In eodem namque CoiKilio ad 

Brother King Stephen before the Synod at Rom. Pontiff audientiam ter appelJaiuJi 

Winchefter, to anfwer for hu Misheha- eft. 

viour toPforis the Bifhops, W. Malmsburi- (*) CottonV ^bridg. of Rec. i Hen. 

enfis,Hift.Nov. L 2. EtvideW.Malmf- IV. 86, 8c 2. Hen. IVT26. 

bur. de Geft. Pontif. In Radulpho Ar- (a') Life of Hen. VII. p. 70. Engl. And 

chicpifcopo, p. 131. 1. I. fee the Tear Booh, I Hen. VII. loTerm. 

Cj) Hen. Huntingdon, I. 8. p. 226. Hil. 

(16 Steph. R.) Totumque illud Conci- (i) Mr. Prynn'/ Preface to Sir Ro-' 

lium novis AppcUationibus infrcnduit. bert CottonV yibridgmutt of the Records^ 

In Anglia namque Appellationes in ufli Se£l. 14. 

non crant, donee cas Hcnricus Winton. 


Croijon (?/ England ajferted, &C \o^ 

know very well, that Henry IV. had never ^ny ocaifioft 
to try his Fortune in Battle againft King i?/cZ)W II; and 
therefore could not with Juftice pretend to owe his, 
Crown to his Sword ; but indeed to the general Difguft^ 
which the Subjeds of that unfortunate (c) Prince had co Rot. 
taken againft him, which naturally produced a D^T^r- {"y'p^J^^."* 
tion. However, he had the Confidence in open Parlia- Mcmb. 56.' 
ment to pretend a Right to the Iflt of Man by Conqueft ; 
and by Virtue thereof he gave it to the Earl of ISor^ 
thumherland. Whereas indeed the Conqueft was no otherwife^ 
than that Sir William Scroop was taken by him at Eriftow^ 
and beheaded by thofe^ which were of the Fart of this King^ 
while he was Duke of Lancaftre, and made his Way to the 
Crown. But it m not fo much a Wonder^ to fee him give it as 
a Territory acquired by Conqueft ; if withal it be remember d^ 
that he had purpofed to have challenged the Crowns o/England 
and Ireland by a Title of the Sword^ and not by Inheritance^ 
But he was diffuaded from that Claim by Sir William Thir- 
ning, Chief Juftice of the Common Pleas ; and thence it 
was^ that to give fome Satis fa&ion to the Parliament^ that 
doubted if, he made a publick Protefiation, that he would 
not that any Man (hould think, that by way of Con- 
queft he would (d) difinherit any Man of his Heritage^ (</) Rottafl, 
Franchife, or other Rights, ^c. I have reprefented ^ "^"- ^^• 
this Matter in (e) Mr. Seldens own Words, a Gentleman (e) TttUs «/ 
of unqueftionable Authority; from whence it appear'd^ Honour,c. 3. 
how fafe the Liberties of England were like to be in his 
Hands, after fo early an Attempt againft them. But 
Henry VII. had either more Refolution, or better For- 
tune ; for tho' he ow'd his Succefs againft King Ri' 
chard to a Promife (/) he had made before he invaded (j) Baconv 
the Kingdom, of marrying the Princefs Elizabeth ; yet he ^^5 '^^""^ 
always made ufe of his Title by the Sword, and pre- ei E^f .'& 
ferr'd it before all others : And the Truth is, it might 
be eafily proved by fome following Paflages of his Reign, 
that he govern'd more like a Conqueror, than a Prince, 
that defired to be thought a Friend to the Conftitu- 

The Dodor having endeavoured to ftiew, that the 
Subjefts always believ a their Allegiance to be due to eve- 
ry Prince upon the Throne, without regard to Birth, or 
any previous Title ; in the next place he undertakes to 
prove, that Kings de Jure themfelves have freely de- 


Aj .ds.: 

The Hereditary Right of the ' 

dared themfelves of the fame Opinion. This, Icon- 
fefs, is home to Iris Purpofe ', but let us obferve, from 
whence the Dofl:or draws this Difcovery. {g) He fays, 
the Tear-Books clearly fhew, that upon the Death or he- 
mife of any King of England, {by wbofe Authority^ and in 
whofeNam'e the Laws are adminifired) all ASiions^ Suits^ &c. 
which were depending in any of the Kings Courts^ were difcon- 
tinned, and the Parties fiit off) fo that the Plaintiffs were 
compelled to begin their A&iotis again^ or to fiie a Re-fummons 
t9 revive their A&ions, until the ifi 0/ Edward VI. chap. 7. 
promded a Remedy. Thus it was after the Death of Ed^ 
ward IV. in the Courts 0/' Edward V. Thus in the Courts 
0/ Edw. IV. after the Difpoffejfion of flen. VI ; and fo it 
was likewife after the Death of Richard III, in the firji Tear 
cf Henry VII. From which Inftances the Dodor oblerves, 
that Edward IV.'s, and Henry Vll.'s Judges allowing^ that 
ail the ABions and Suits depending in the Reigns of Hen. VI, 
and Richard III, were difcontinued by their Death or 
Demife, they likewife acknowledged thereby the Au- 
thority of thofe two Kings, by which.^ and in whofe Name 
the Laws had been adminifired in their reJpeSlive Reigns. 
And the Do6tor has thought fit in his late (h) Defence, 
to infift again upon this Argument, as much to his Pur- 

B u T he muft pardon me, if I think this a ftrange and 
very unaccountable Way of Reafoning. For how can 
it be any Proof of the Authority of a King de Fafio., when 
alive ; becaufe it ceafes, when he is dead ? My Lord 
Chief Juftice Coke (whom the Dod:or will give me Leave 
to think as able a Lawyer, as himfelf j has (i) given a 
plain Reafon, why Difiontinuance of Procefs and Law-Suits 
was unavoidable in thofe Times, upon the Death or De^ 
mife of every King; and that is, becaufe all their Com- 
miffions expire with themfelves; and confequently the 
Courts of Judicature were deftitute of Judges to prefide 

(2) Vim, p.p. 

(h) p. 52. 

(i) Coke'j Reports, Part y, 30. Al 
common Ley per demife ]e Roy ]e Plea 
fiiit difcontinue, * le Proces, que fuit 
agard & nient returne devant le mort le 
Roy, fuit perde : . C^r per le Breve del 
Predeceffour rien poit eftre execute in le 
Tempsdel Novel Roy, fi. non. que il foic 
in Special Cafeii J car par le pjipft le Roy 

non foleipent les Juftices de I'un Banc & 
de i'autre, & Barons del Exchequer, mqs 
les Viconts auxi & Efchetors, & toots 
Com miffions de Oyer & Terminer, 
Gaole Delivery & Juflices de Peace, font 
determines par ieraort le Predeceflbur, 
qui cux fit; & pur le remedie de ceo 
fuit le Statute de i Edw. VI. c. 7. mais 
encore cet Aft n' adprovide remedie pur 
touts les i^ifchiefs, (^c. 


Croivn of JEngland ajferted, &g. . io^ 

over then! ; and proper Officers Were wanting, upon 
tvhom the Execution of all Writs and Orders depends : 
So that the Dodor*s Argument is plainly this ; thnry VI. 
Iiad as little Power in fome Cafes, as his Predeceflfbrs ; 
therefore he had as much as they, in all other refpe6ts : 
Or thus ; Hmry VI. could not raife Taxes without a 
Parliament, no more than King Edward III ; therefore 
he was as Lawful a Prince as he. Surely one muft have 
great Partiality for the Doftor, to approve of fuch Rea- 
soning. Had the Cafe indeed been quite otherwife^ 
upon Henry VI.'s Demife; had the Law-Courts been 
open, and Procefles been continued ; it might truly then 
have been affirmed, that his Commiffions had a greatet 
Force and Virtue, than any of thofe of his Predeceflbrs ; 
and this, I confefs, might have been admitted as a 
Proof, that Edward IV. did really own his Authority : 
But as the Doctor has managed his Argument, it is evi* 
dently to the Difadvantage of his Caufe ; for were it 
true, that he is a Lawful King, upon whofe Death or 
Demife all Procefles are difcontinued in the Courts of 
Juftice ; then it would be impoffible there (hould be any 
Ufurpers ; then Oliver CromweU would have had a good 
Title, according to the old £ng/(/^Cb«//W/o/2; and laft* 
ly, the Authority of the Commonwealth muft alfo be al^ 
lowed ; for all Procefles, ^c, begun in their Courts, 
would have been difcontinued at the Reftoration of 
King Charles II, if an Ad: of Parliament had not pafled 
on purpofe to prevent it. In a word, the {k) Doctor 
inferrs from the Difcontinuance of A^ions^ Suits^ &c. in 
the Courts of Law, at the Demife of Henry VI> and the 
Difpofleffion of Edward IV; that thefe two Kings mu- 
tually acknowledged one another's Authority. Now 
the Reader muft needs think this a very ftrange Piece of 
News ; if he confiders, that thefe Princes treated one 
another, upon all Occafions, with the opprobrious Names 
o^Vfurpers and unjufi Poffeffors of the Throne : The Doftor 
knows this to be true of Edward IV^, whofe A6ts are full 
of Reflexions on the Three Henrys^ as Kings without any 
Right or Juftice; and when Henry Ml. recovered the 
Crown, he(/)fpeaks of Edward IV* in the fame civil 

(/{) ^iw, J), p. feRebellenl,qut nuperCoronam &Dig- 

(/) A pud Rymer. Feeder. & Convent* nitatera noftras fal»6 ft proditori&, ac 

Sec. Tom. xi. p. 70^, 706. Henry VI. ufurpatiY^ ocsupaiafc Et Tide p. 6j>6, 

f-f&EdwarJ IV. Inimicurafuum magnum 680. - 

F ( and 

^I6\ The Hereditary Right of the 

and obliging manner j for he fays, that he falfly^ traite' 
roujly^ and ufurpingly poflefTed the Crown. Were they 
then but in jeft, when tliey beftowed this Language fo 
freely upon one another? And has the Dodtor at laft 
difcovered a fecret League of Friendfhip between them? 
It will however be very obliging in him, to make it 
out a little better, than he has yet vouchfafed to do. 

The Dodior now proceeds to another Argument 
(w) T/w, from the Tear-Books, (m) From them^ fays he, we may 
P- *3- obfer've.^ that all the Grants^ Licenfis^ Letters Patent^ Gifts^ 

and in Jhort^ all the Regal A&s of the Three Henrys of the 
Jioufe of Lancafter, and of Richard III, are pleaded and al- 
lowed in all the Judicial Proceedings of Edward IV^, and 
Henry VII. j Courts of Judicature^ to be as 'ualid^ as if they 
had been the Grants^ &c. of any of their Progenitors of the 
mofi uncontejied Titles. Bagot'jf Cafe is that^ which has been 
ufually urged and debated in this Contro^^rfy ; and fome may 
he apt to think^ this is the only Inftance.^ that is to be given ; 
but in Truth the Year- Books furnijh us with abundance of 
the like Cafes. Bagot'i Cafe alone was cited^ I fuppoje^ by 
my Lord Chief Jujiice Coke ; not only becaufi he thought that 
Cafe was ofitfelf decijive ; but becaufi it was the only Cafe in 
the Year-Books, where the Authority of a King de FaiSto 
had ever been difputed^ and yet Judgment given for it ; and 
becaufe fe'ueral Points of Law relating to that Authority were 
there maintain d. 

In anfwer to all this, I might juftly queftion, whe- 
ther in Fad it be true, that fuch an abundance of In- 
fiances can be produced of Grants^ Licenfes^ &c. of the Three 
Henrys, which were pleaded and allowed in the Courts of Ed- 
ward IV. For after a careful Perulal of the Tear-Books 
of that Reign, I muft freely own, that if any fuch are 
to be met with, they have efcaped my Obfervation, tho' 
I ufed as much Diligence in order to the Difcovery, as I 
thought was necejGTary. It is worth enquiring of the 
Doctor, within what Period of Time this abundance of 
Infiances happen 'd ; for if they all preceded Bagot's Cafe, it 
is ftrange they did not prevent it; orthat that Cafe fhould 
ever have troubled the Courts of Juftice,hadthe Authority 
of Kings de Fa&o been held unqueftionable. But after all, 
if fome fuch Inftance fhould be produced, I would in- 
treat him to confider, whether thofe Grants of the Three 
Henrys^ that Ihould be found to be allowed in the Courts 

Crown of England ajferted, &g. 1 1 1 

fl/ Edward IV, did not owe their Validity entirely to 
the Confirmation of that King. For if thisfhould prove 
to be the Cafe, I may then fafely appeal to the moft 
partial of his Friends, whether this Argument from the 
Grants^ &:c. of the Three Henrys^ can do this Caufe any 
Service. But it will be time enough to infift upon this,^ - 
when the Do6tor's Inftances are brought to Light. 

A s for the Grants^ &:c. of Richard III, which, he is 
pleafed to affirm, were likewife admitted as valid in ft- ' ' 
veral Inftances by Henry VII.'s Judges ; I muft beg Leave 
to think this another Miftake of the Dodlor's ; becaufe l 
have not been fo fortunate, as to meet with any fuch in 
my Search : However I am perfuaded, they will notj 
turn to his Account, fhould th^y ever appear; for Rea- 
fons, which fhall be given in their proper Place. ' • 

I AM nov/ arrived at that famous Cafe, which the 
Dodor calls Vecifive; and believes to be an indifputable 
Proof, that the Law of England afcribes a full and com- 
plete Authority to Kings de Fado^ by allowing all their 
Grants and Regal Adts to be valid and effectual to all 
Intents and Purpofes. I (hall beg the Liberty therefore 
to lay it before the Reader in a more exa6t and ample 
Manner, than I think has been hitherto done ; fome 
Circuraftances having been omitted in former Repre- 
fentations of it, which, if I miftake not, are very fit 
to be obferved, in order to make a right Judgment of it. 
The Cafe is this. 

' (n) King Edward IV, In confideration of the («) pEdw,^; 
'good Services done him by J. Bagot^ grants by his^^^^-^^"!- 
' Letters Patent {Anno 4. Edward. 4." ) to him and WSwlren* 
^ don in Conjunction, or to the Survivor of them, the Office 
' of Clerk of the Crown in Chancery.^ after the Deceale or 
' Surrender, ffyc. of one William Rom^ then in PoiTeffion 
' of it. Anno 6" Edw'^'- 4." William Rous furrenders this 
*■ Office ; and then the (aid Swirendon and Bagot imme- 
' diately take PoiTeffion of it, by Virtue of the Letters 

* Patent beforementioned ; and continued in this Office, 
' till one Thomas Ives diffeized them of it, upon Pretence 

* likewife of Letters Patent dated Anno 6'" Edw'^' 4."' 
' J. Bagot, ffyc. upon this commence a Suit againll Tho' 

' mas Ims^ in which the faid (0) /wj being Defendant, al- C«)7Edw.4: 
' ledges againft Bagotj that he was an Alien, born outofhii. ""^ 
*• the Allegiance of the King of England . and under the ^^^'^^^-^X- 
Obedience of Charles King of France.^ the King s great 

' Adver- 


tix The Hereditary Right of the 

Adverfary and Enemy. Bagot upon this (hews a Tatetii 
of Naturalization^ (pj granted him by King Henry VI. 
in the 37th Year of his Reign : Ives repHes, That all 
the Regal ABs of the Three Henrys ( q) being annulled by 
AH of Parliament^ that Patent was confequently of no Au^ 
thority. frjSome time after came on another Tryal be* 
tween Bagot and hes ; and then the Adt of Parlia- 
ment alledged by the Defendant, to invalidate the Patent 
granted by Henry VI. was confidered ; and it was affirm-* 
ed by Bagot\ Counfel, That notwithftanding that Ad^^ 
the Patent of Naturalization granted to Bagot was good ; 
for King Henry was King in Poffejfion ; and it was requi- 
fite, that the Kingdom fhould have a King, under 
whom the Laws might be kept, and Juftice adminiftred : 
Therefore altho' he was King only by Vfurpation j yet 
every Judicial AB done by him, which concerns the 
Royal Jurifdidlion, fhall be good, and (hall bind the 
King de Jure at his Return ; and then they inftance in 
a pardon of Felony^ a Licenfe of Mortmain^ a Grant of 
Ward^ tyc. And that therefore the King that now is, 
(hall have Advantage of all Forfeitures made to Hen^ 
ry Vi ; and for a Trefpafs committed in his Time^ the 
Writ fhall run, contra Pacem Henrici 6'' m^er de FaBo 
fynon dejure; and a Man fhall be arraigned forTrea- 
fon committed againft the faid King Henry^ in compaf- 
fing his Death : And therefore fuch Judicial ABsmnde 
by the faid King Henry fhall be good, provided they 
are not to the Diminution of his Crown ; for then they 
fhall be voided by the King that now is, in his ancient 
Right. Befides, this King Henry was not meerly an 
Vfurper; for the Crown was entailM upon him in 
Parliament. Then Judge JBi/?m^deliver'd his Opinion, 
That it belonged to every King., by reafon of his Office^ to do 
Juftice^ and Jhexo Mercy ; Juftice in executing the Laws^ ' 
arid Mercy in granting Pardon to Felons .^ and Jitch a Legi- 
timation^ as this of BagotV, ^lyc. And lalily, it was 
faid. That if he, who is now King, had granted a Char- 
ter of Pardon in the Time of Henry VI. it would have 
been now void ; for every one, that fhall grant a Char- 
* ter of Pardon, ought to be King in FaB^ (/). And where- 

(p) 9 Edw. 4. 3 Term. Trin. jour Ics Juftices ne arguer, eins Jes Ser- 

Iq) 7 Edw. 4. 17 Term. Hilar. jeants & Apprentices, i. e. Only the Str- 

(r) p Edw. 4. 2 Term. Pafch. jeantj tind apprentices on both fides argned 

\s) The Tear-Book ends this Hearing with that Day, and nit the Judges, 
^eft Words, Et adjoin«ur. Et a celte 



Cro'wn of England affened, &:c. \X% 

^ as It had been urged by the Defendant^ and his Couti- 
'fel laid great ff) Strefs upon it, That Sagot was an C0 9Edw,4: 
' Alierif born in the Dominions of France^ out of th6 pJ^J™' 
' King's Allegiance ; this is utterly denied by («) Bagot^ l^^ptdw.^; 
^ who fays, That his Parents were both Englijh by Birth ; ^J^'""' 
* and that he was born the King's Subje6t in his Duchy 
^ of Normandy ; and the fame is likewife aflBrmed in the 
^ (x) Letters Patent of Henry VI. On the other hand, (x) pEd^^; 
' (y) the Serjeants and Apprentices^ who were of Counfel ^^^J""^', 
' for /z/ej, would not allow thefe Letters Patent of Hen- (y) p Ed** 
' rj VI. to be good ; For^ lay they, the King mufi not be in I'^f^h! "'"* 
^ a vporfe Condition^ than any common Person. If a common 
Perjon is dijfeized^ and recovers Pojfejfion a^ain^ he Jhall de- 
' feat all the mean A&s ; therefore the Kiri]^ Jhall do the fame^ 
' mw that he enjoys bis Bight^ defcended to him from King Ri- 
'chard. Bejides^ this AB [viz. the ift of Edward IV, 
'which voids the Aits of the Three Henryj) is nothing 
' elfe^ but an Affirmance of Common Law ; therefore by bis Re- 
' grefs he has 'voided all A&s made by the VJurper ; arid upon 
^ this Account it is^ that in the /aid A& he has excepted all ju^ 
' dicial A&s, 8cc. and declared them good ; but for the Validi- 
^ ty of thefe Letters Patent^ no Provijion is made iri it. And 
' then as a farther Proof, that the Ads of a King de 
' FaBo are of no Authority, they add ; That a League 
^ male between King Henry VI. and any other Foreign Prince^ 
' tho* intended for the Advantage of the Realm^ /hall not bind 
' the King that now is. And at the laft (z) Hearing of this (t) pEd*; 
' Caufe, Judge Bryan oppofed the giving Judgment for jri^J""* 
' Bagot.^ for this Reafon ; becaufe. the King being now in 
' his Remitter.^ as Cou/in and Heir to King Richard, the 
' Patent made by King Henry, who was only an Vfurr- 
^ per and Intruder .^ was void. At length, after feveral 
'Hearings, the Judges having debated the Matter, re- 
' folv'd, {a) that no ObjeSiion had been offered of Weight enough 0) 9 tdw^ 
' to procure an Arreji of Judgment ; and fo Bagot was put I'rin.^""" 
' in Poffeffion of his Office. 

This, I will prefume to fay, is a true and full Re^ 
prefentation of this celebrated Cafe ; for it was my In- 
tention to omit nothing, that could poffibly be thought 
material ; and I am perfuaded, I have executed my De- 
fign. I (hall therefore with fome Confidence referr it to 
the Reader, Firji., Whether the Doftor's Memory of 
Skill did not fail him, in fome Parts of the Vkw he has 

G § given 

114 The Hereditary Right of the 

given of it. Secondly, Whether the Inferences he draw§ 
from it are fo evident and jufl-, as he imagines. And, 
Thirdly, Whether in Trutli any Propofitions can be ex- 
tracted from it, that will ferve his Purpofe. 

Firfi, Idefire the Reader's Opinion, Whether the Do- 
dor's Memory or Skill did not fail him, in fome Parts 
of the View he has given of this Cafe : For he tells lis 
{h) Vim of with no little Aflurance^ {b) That the oppofite Counfel did 
Gniiumon, ^^^ ^euy any one of the Points of Law maintained in Bagot'j 
p.J7. y?»</ Plea', and then with an Air peculiar to great Writer?, 
p/58!'^'' asks the Queftion ; U^oud not the Counfel on the other fide 
ha've contradi&ed or anjwered^ if they could^ what had been 
urged in behalf of Bagot, as it concern d their Client s Catife ? 
Iconfefs, it is not without fome Amazement, that 1 look 
upon thefe Paflages in the Dodor's Book ; and 1 now ap- 
peal to the Reader, whether there is not reafon for it : 
Let him but caft his Eye upon what I have juft now re- 
cited ; and let him judge between us, whether the fol- 
lowing Words do not contain a diredt and full Anfwer 
(c) 9 Hw. made by /w/s Counfel to that of Bagot. And (c) on the 
fafch/™' other Jide (that is, Ives\) it was touched by the Serjeants and 
Apprentices., that the Letters Patent Jhall be wid; for the 
King (the King de Jurej muji- not be in a worfe Condi- 
tion., than any common Perfon. If a common Per/on is dif- 
feizd^and recovers Poffejfion again^ he /hall defeat all the mean 
Acis ; therefore the King /hall do the fame^ now that he 
enjoys his Right ^ defcended to him from King Richard. 
Be/ides.,thisAS (viz. I Edw. IV, which voids the AOcs of 
the Three Henrys) is nothing e//e, but an Affirmance of Com' 
mon Law, therefore by his Regrefs he has <voided all AtJs 
made by the Vfurper ; and upon this account it is.^ that in the 
faid AB he has excepted all Judicial ABs.^ Sec. and declared 
them good ; but for the Validity of thefe Letters Patent., no 
Prom/ion is made in it. I would now leave it to the Do- 
dor himfelf, what can be the Meaning of thefe Words ? 
Is it not plain from them, that the Plaintiff's Counfel 
denied what the Defendant's affirmed ? Bagois Law- 
yers are pofitive, that Henry VI.'s Letters Patent are 
good ; becaufe all Judicial Ads done by an Ufurper 
fhall be good, and bind the King de Jure at his Return. 
But /wj's Lawyers anfwer, that thefe Letters Patent fhall 
be void; becaufe otherwife the King fhould be in a worfe 
Condition, than a common Perfon, q^c and therefore 


Cro'von of England ajferted, &c. 1 1 f 

tiiey ddd, That all Ads done by an Ufurper are void; 
and that even the Judicial Ads had not been good, but 
by Virtue of Edward IV.'s Confirmation ; but then they 
deny, that thefe Letters Patent could come under the 
Denomination of Judicial Ads. Is not this a manifeft 
Contradidion to the Plea of Bagot's Counfel; and a 
plain Denial of the Points of Law contained in it? And 
if it is fo, I muft be allowed to fay, the Dodor has not 
fairly reprefented the Cafe. 

Secondly^ BagotV Cafe^ fays our (d) Author, is the only ('i) ^'^l 
cne^ where the Authority of a King de Fado had ever been ^' ^^' 
difputed ; and yet even then not difpiited at Common Law : For 
the Counfel againjl Bagot feem'd well enough aware^ that the 
Authority of a King de Fado was good at Common Law^ Sec 
Nothing furely can be more diredly contrary to the ex- 
prefs Words of /Ws Counfel, than this AfTertion of the 
Dodor's ; for as they lie in the Tear-Books^ they are thefe 
which follow, (e) Thai AB (meaning the Firfl: of £ti- CO p Edw.4,- 
ward IV, which annulls the A&s and Grants of the Three xJa™' 
Henrys) is only an Affirmance of the Common Law ; and 
therefore King Edward, at his Regrefs^ voided all the A&s 
made by the Vfurfer^ Sec. Does it appear from hence, 
that they trer^ aware^ that the Authority of a King de Fadd 
was good at Common Law ; when they undeniably afifirrn, 
that by Common Law all the ABs of Vfurpers are to he declared 
void? I am afhamed of making the Reflexions, whicli 
are natural upon this Occafion. 

Secondly, 1 am now to enquire, whether the Infe- 
rences he draws from this Cafe, are fo evident arid juft, 
as he imagines. And in order to this, 1 muft defire it may 
be rememberM, that the Grand Pofition, which, the Do- 
dor would perfuade us, is demonftrable from the (f) Pro- (/) nw, 
ceedings now before us, is this ; That the Authority of a King ^- ^' ^■^• 
de Fado was fully own d and acknowledged in the Courts of Ju- 
dicature of King Edward IV, a King de Jure. And this 
(^)he is pleafed to inferr, F;V/?, From the Pleadings oUg) P-5c- 
Bagot\CoVin[t\ ; and Secondly^ From the Judgment, which 
was at length given for him. I flaall now confider the 
Force of the Dodor's Arguments, from which he de- 
duces his Conclufion ; and I think 1 (hall be able to make 
it appear, that they will by no means ferve his Purpofe. 

F/V/?, He inferrs from the Plea of Bagoth Counfel, 
that the Law allowed of the Authority of Kings de Fatio. 


p. 17. 


Ii6 ' The Hereditary Right of the 

But might not that Counfel err in thofe Points, which 
they urged for Law ? And were they exempted from the 
common Infirmities, which the ableft Lawyers have been 
fubjedt to, of being fometimes miftaken ? The Do£tor 

(h) rterp, indeed, as aware of this Objedion, tells us, (h) The o^- 
pojite Counfel ■would certainly ha'ue denied thefe Points of Laxv^ 
if they were not evident. But I have already fliew'd, that 
the Dodor's Accuracy here fail'd him ; nothing being 
more true, than that the oppojite Counfel did deny the Pointy 
of Law maintained in BagotV Plea. So that here we have 
Counfel againft Counfel ; and confequently (according 
to the Do&or's Way of Reafoning) Law againft Law ; 
and then the Queftion ftill remains, which Side was on 
the Right; and which it was, the Law did really fa^ 
your ; fo that the Authority of Kings de Fa&o is not yet 
• a decided Truth. The Dodor therefore feems to be 
fenfible, that his Aflertion needed a farther Support ; 

(i) T/w, and for that Reafon asks, (/) Can any Man believe^ that in 
the Courts of Edward IV, who had waded through fo much 
Blood to the Throney and was fo jealous of any thing.^ that 
favoured the Lancaftrian Kings^ they durji have made this 
Plea^ if they had not known it to be Law ? To this I an- 
fwer; I fee nothing in this Plea, which could give any 
juft Offence to EdwardlV^ or his Party : For that Prince 
had only Caufe to be jealous of thofe Opinions, that fa- 
voured the Right and Claim of the Lancaftrian Kings ; not 
of fuch, as only aflerted the Reafonablenefs of allowing 
the Judicial ABs of the Three Henrys.^ and fuch other, as 
were neceffary for the Order of Government in general, 
and were not prejudicial to his own Title ; which, I 
doubt not, will appear to be the only Ufe, that can be 
fairly made of this Plea. But fuppofing the Cafe to lie 
as the Doctor reprefents it -, I cannot however fee the 
Neceffity of his Confequence; for why may it not fome- 
times happen, that a Counfel fliould ufe an undue Li- 
berty in their Pleadings ; and that in a Point of Moment 
too, without any real Warrant from Law ; and yet meet 
with no Reprehenhon from the Judges ? Is Modefty in- 
feparable from the Gentlemen only of that Profeffion ? 
Or is it impoflible for Courts of Juftice to be guilty of 
too much Lenity and Patience towards thofe, who would 
have their Boldnefs pafs for Law ? I freely own, that if 
the Judges under ftood the Plea of Bagot'i Counfel, in 


Croivn of England afferted, &d. i 1 7 

the Senfe the Do6tor does, and thought they were in thd 
Wrong, they ought to have refented their PreCumption, 
and rebuked them for it ; but if they thought them in 
the Right, and believed they faid nothing, but what was 
agreeable to the Laws ; why then did they fuffer lms\ 
Council to argue with that Confidence, againft fo fa- 
cred a Thing as the Confiitution ? Behold, how audi- 
cioufly they affirm to the Court, (k) That the King de d) p Ed<*. 
Jure /hall defeat all the mean A&s of the King de Faifto, when plfch/""' 
he recoTjers his Right. That thefirfi o/Edward IV, (which 
voids the Grants of the Three Henrys) is nothing elfe^ but 
an Affirmance of Common Law^ vchich gave him Authority to 
wid all the A&s of the VJurper his Fredecejfor. Were there 
ever more fcandalous and infufFerable Affronts offered to 
the Laws and Conftitution of England^ in the Dod^or's 
Opinion ? And therefore furely the Serjeants and Appren- • 
tices, who ventured to utttr them, ought lb have felt 
the Weight of the Judges Indignation for fuch unparal- 
lel'd Boldnefs : But fince it appears, they efcaped with 
Impunity, will the Dodor therefore give his Adverfaries 
Leave to inferr, that the Court allowed of their Plea ? 
Have they not the fame Right to reafon after this Man> 
tier, as the Dodor has ? And if his Argument thus re- 
turns upon him ; it will become him to be fenfible, that 
it is not worth his while to infiftupon it. Upon this 
Occafion I hope it will not be impertinent to put him in 
mind of a PafTage, which happen'd at the Tryal of AU 
gernon Sydney. That Gentleman had been charged with 
Writing fome trealbnable Papers found in his Clofet • he 
denies indeed, that he wrote them ; but after the Read- 
ing them in Court, he had the Confidence to fay, he did 
not know, why any body Ihould be afhamed of being 
the Author of them. (/) For (fays he) they feem to he (l) Tryal of 
an Anfwerto Filmer, who maintains this Principle., That '^ij^S^y^^ 
the fame thing, whether a King come in by Ele&ion^ by Dona- 32, 33- 
tion., by Inheritance., or Vfurpatiori^ or any other way", than 
which I think never was a thing more defperately faid. Crom- 
well, when one White a Priffi wrote a Book., wherein he un- 
dertook to prove., That Poffejfion was the only Right to Power ; 
though he was a Tyrant., and a violent one.^ thought it Jo odi' 
ous a Principle., that he woull not endure it., and ufed him ve* 
ry /lightly for it. Now this Filmer /'/ the Man., that does 
a/fert it^ that \is no matter^ how they come by their Power ; 

H h and 

Ii8 The Hereditary Right of the 

and gives the fame Tower to the worft Vfirpers^ as they^ that 
mpfi rtghtly come to the Crown. By the fame Argument^ if 
the erranteji Rafcal of Ifrael had killed Mofes, David, ij^c. 
and feizd upon the Power ; he had been poffeffed of that Power^ 
and been Father of the People. If this be Do&rine.^ my Lord., 
that is Jufi and Good., then I confefs it may be dangerous for 
any thing to be found in a Man s Houfe contrary to it., &c. 

Now the life I would make of that Pafifage, is this ; 
It is plain, it contains a Doctrine diredlly oppofite to a 
very confiderable Part of the Englijh Conftitution, if 
the Do6lor is in the right : It is utterly inconfiftent with 
thofe Notions, which he maintains are evidently fup- 
ported by the Common and Statute Laws of his Country, 
and have been confirmed by the conftant Example and 
Practice of the greateft Men, for above Six Hundred 
Years : And yet the Chief Jufiice., the Judges then upon 
the Bench, the Attorney and Solicitor^General, and the reft 
of the King's Learned Counfel permitted the Laws of 
the Nation to be arraigned in fo publick a Manner, with- 
out the leaft Cenfure or Reproof. I would now ask the 
DoCtor, if I might prefume fo far. Whether fuch an 
bmiffion in thofe that prefided at that Tryal, could fair- 
ly be interpreted as a ConceiTion, that what Mr. Sydney 
faid was true ? 
(m) rim of Lastly, the Dodor (m) concludes, from the Judg- 
the tngiiOi jjjent given in Favour of Ba^ot. that the Court plainly 
p. 17, 1 8. declared for the Validity of the King de taCto j- Patent ; 
and confequently of his Royal JuriJdiBion., though not confirm- 
ed by the King de Jure, in a Statute made exprejly for that 

These Words are home, I confefs; and would be 
fully to the Doctor's Purpofe, if they were true ; but 
that I muft beg Leave to doubt of, for the following 
Reafons : 

Kr/?, Becaufe the judgment for Bagot did not necefla' 
rily imply the Validity of the Patent of Henry VL 

Secondly., Becaufe, fuppofing the Patent of Henry VI. 
were declared valid by Virtue of this Judgment ; yet it 
would not be a good Proof of his Authority in the pre- 
fent Queftion. 

Firfi., I fay the Judgment for Bagot did not neceflfarily 
imply the Validity of the Patent of Henry VI, upon the 
Certainty of which the Doctor entirely depends in his 


Croiv^i of England offer ted, &CC itp 

prefent Argument ; for he does not pretend to inferr the 
Authority of a King de Facio from any other Medium^ but 
that of the Validity of his Patent : But if that cannot be 
proved from this Judgment, we are then juft where we 
were ; and we muft v/ait for happier Difcoverics, be> 
fore we admit of the Authority of Kings de Fa&o. 

The Reader will be pleafed to remember, that the 
Point aim'd at by Bapt in this Tryal, was to get Poffef- 
fion again of the Office, to which he laid Claim by the 
Grant of Edward IV ; and that after feveral Hearings, 
at length the Judges declare, T'hat nothing had been fug^ 
gefied of Weight enough to caufe an Arreji of Judgment ; and • 

then they proceed to give it for Bagot^ viz. That he Jhall 
reco-ver his Office^ Sec. Now I muft here obferve, that it 
does not appear, upon what Grounds and Reafons they 
gave this Judgment ; the Do6tor indeed is pofitive, that 
it was by Virtue of the Patent of Benry VI, which they 
allowed to be good : But how does he know that ? Was 
there no other Motive fuggefted in Bagoth Plea, that 
could poffibly induce them to determine for him ? If 
there was ; then the Dodlor muft confefs his Caufe is ftill 
doubtful. Now it is evident, that tho' Bagot did plead 
the Fatent of Naturalization of Henry VI. to qualify him 
for this Office; yet he alfo (n) affirmed, that he was («)pEdw.4; 
horn of Englijh Parents in the King's Duchy of Normandy ; 3Term.Trin. 
and confequently had a juft Claim to the Rights and 
Privileges of an Englijh Subje6i, tho' his Patent of Na- 
turalization were fet a fide ; for if this fliould not be al- 
lowed to be a Legal Title, we muft at once reje<5t all 
my Lord Chief Jujiice Cokes Arguments in Cabins Cafe^ 
and the feveral Judgments given for the Poji-Nati^ by the 
ableft Lawyers, in King James l.'s Reign ; the Doctor 
ought not therefore to think it improbable, that the 
Court was influenced by this Reafon, in the Judgment 
they gave for Bagot. But, 

Secondly., Suppofing the Patent of Henry VI. were ad- 
mitted to be 'Valid., by Virtue of this Judgment; yet this 
would not be a fufficient Proof, that his Authority was 
allowed of in the Courts of Edward IV : For the Pa- 
tent might derive its Force only from the Authority of 
Edward IV, who confirmed it ; not from any that was 
acknowledg'd to be in Henry VI. And the Truth is, this 
is all that Bagofs Counfel pretended to ; for it is plain they 


I20 The Hereditary Right of the 

contend only for thefe Two Points : Fhji^ That all tli^ 
^judicial AEis of Henry VI, fhould be allowed to be good. 
Secondly^ That this Fatent of Naturalization fhould be ad-* 
mitted to be a Judicial A& : Now the oppofite Counfel 
very readily grant, that the Judicial A&s of Henry VI. 
were declared Valid by the firft of EdwardlV ; but then 
they do not agree, that this Patent was of the Nature of 
a Judicial Ati : So that if at laft the Court was of Opi- 
nion, (which is not unlikely, and may be true, for any 
thing that appears to the contrary) that this Patent might 
very well come under the Denomination of a Judicial 
• AH ; it was then confequently confirmed by Edward IV ; 

and therefore ought to be look'd upon as fuflficient for the 
Purpofe, for which it was produced ; but then this is only 
a Proof of the Authority of Edward IV, not of that of 
Henry VI, as I before obferved. The Dodor poffibly 
may be of the fame Opinion with /wj's Counfel, and 
deny that this Patent was a Judicial AB ; but then he dif- 
fents from his old Friends, the Managers of Bagot\ Plea, 
upon whofe Judgment he has hitherto thought he might 
fafely depend: And befides, it appears from another 
Cafe in the (o) Tear-Books^ that all AHs of Record enter d 
in Chancery^ may properly be term'd Judicial A&s ; for 
the Chief Juftice Markham having there queftioned the 
Authority of Coroners chofen in the Time of Henry VI, 
Telverton and Choke anfwer, (p) That the Ele&ion of a Co' 
toner being certified in Chancery^ is an AFt of Record^ and a 
Judicial AB ; in which Cafe^ all Judicial A&s done in the 
Time of the laft King, are affirmed by the King and aU his 
Council. Which does not only furnifh us with a frefh 
Confutation of what the Dodor had affirmed, z//z. That 
BagotV Cafe was the only one, in which the Authority of a King 
A^^ii^o had been ever dij^uted; but alfo feems to be a 
clear Proof, that Bagot's Patent of Naturalization being an 
AB of Record., ought to be look'd upon as a Judicial AB, 
So that after a due and full Examination of this famous 
Cafe, which has fo often been appealed to, and is infi- 

(o) 4 Edw. 4. 3 Term. Hilai'. 

CpJ Quant a ceo qui eft dit, que les 
Coroners avaunt dit, ne fuerent noveJle- 
ment eflues enTemps, le Roy qui ore eft, 
iflint que ils ne font Coroners a Roy. i. 
al Roy qui ore eft, &c. Semble que ils 
fonti ; Car le Coroner n'ad Commiflion, 
li come auter Minifter ad, ou ceme au- 

ter Judge ad ; mes per bref leRoy il eft 
eflue ; quel Eleftion certifie en le Chan- 
cery eft A(ft de Reccwd, & Judicial A^^ 
en quel Cafe al Meins Judicial j4EIs fait 
en Temps le Roy qui Ibit, font affirmc^ 
par le Roy & tout fon ConfeiJ, 4 Edw. 4, 
3 & 4 Term. Hilar. 


Croivn of Etigland ajferte/^, S£c. Hi 

fted upon by the Dodtor, as decljim in the prefent Con- , 
troverly; we are ftill as much in the Dark as ever : It is 
Hot certain that the Judges thought Henry VI.'s Fatent was 
valid ; or if they did, it is not certain, but they might 
think lb from the Confirmation of Edward IV, not from 
any Authority it deriv'd from Henry VI ; and therefore it 
remains ftill to be proved. That the Courts of Judicature 
fully acknowledged the Authority of Kings de Fa&o, 

1 M I G HT now very excufably difmifs this Argument, 
and perfuade myfelf, 1 have faid enough to render it ufe- 
lefs and unferviceable to the Purpofe, for which it has. 
been urged ; but poffibly it may be expected, 1 fhould ^ 

take a little more Notice of the Points of Law (^s the Do- 
dor is pleasM to call them) contained in the Plea of Ba- ^ 
got\ Counfei : I (hall therefore now endeavour to grati- 
fy him in this refped ; and I doubt not but to make it ap- 
pear, that thefe Points of Law ^ underfl:ood in his Senfe^ 
do certainly prove too much ; but if we are to under- 
ftand them according to their natural, obvious, and, I 
think, only true Meaning ; they will then as manifeftly 
prove too little. 

Firfi^ I fay, thefe Points ofLaw^ underftood in the Do- 
lor's Senfe, do certainly prove too much ; becaufe the 
Authority of all Governments de Fa&o m^y as well be in- 
ferr'd from them, as that of Kings de Fa&o: WhicH 
is more than the Doctor will be willing fhould follow 
from any of his Pofitions. For when his Adverfaries 
had objeded, that his Arguments had a plain Tendency 
to maintain the Legality of all the Publick A&s of the 
late Republick^ and Oliver Cromwell ; it is obfervable, with 
what Indignation (q) he relents the Charge of fuch a (q)Defencei 
Confequence ; and reproaches them with the Guilt of ^' '°^* 
^:hat Abfurdity, which they intended to faften upon him : 
But how great foever may be the Difpleafure I muft ex- 
pert to incurr by this Imputation ; it is to me evident, 
that the Reafons made uie of by Bagot's Counfei, will 
ferve the Caufe of a Commonwealth^ as well as that of a 
King de Fa&o : As will eafily appear by a particular 
Examination of them. 

Firfi^ It is Hi id to be neceffiry, the Realm Jhouldhave d 
 King^ under whom the Laws fhould be kept and maintained. 
. Very good ; but a King then is only neceffary for the 
• fake of Government : And may not that End be obtain^ 

li kA 

122 The Hereditary Right of the 

ed under a Commonwealth ? The Laws may be beftef 
executed perhaps by a King^ than a Cromwell^ or a Re" 
publick ; but if a King is not to be had, it is necefary to 
have fome other Government ; becaufe otherwife the Laws 
could not be kept^ nor maintained. To whatfoever Powers 
therefore we are beholden for that Benefit ; they muft 
have the fame Authority, as a King de Fa&o. The Coun- 
fel proceed ; Therefore altho he was in hut by Vfurpation ; 
yet every Judicial A6i done by him^ concerning the Royal Ju- 
rifdiiiion^ Jhall hold good^ and /hall hind the King de Jure, 
when he returns to the Crown^ &c. Thus Charters of Pardon 
Jfjall begood^ &c. Their Argument is ftill grounded up- 
on the Principles of common Jurtice and Equity ; and 
why may not thefe take place under a Commonwealth, as 
well as a Monarchy ? They go on ; The King that now 
is^ Jhall have the Advantage of all Forfeitures made to King 
Henry VI. True; and lb had King Charles II. the For- 
feitures made to the Commonwealth : And therefore ac- 
cording to this Argument, the Commonwealth was a Legal 
Government. It follows; And for aTrefpafs committed in 
Henry VI.V Time, the V/rit Jhall run contra pacem Hen- 
rici 6" nuper de Fa6lo & non de Jure. 

Here, I confels, I am at a Lofs how to proceed ; 
for I am loath to believe, that for Trefpafles committed 
under the Commonwealth or Oliver Cromwell^ the Writs 
fhould run fin the Reign of King Charles II. j contra Pa< 
cem Reipublic^^ or contra Pacem Oliveri nuper Anglid: ProtC" 
Bork^fyc. and yet, according to the Doftrine of ^di^of's 
Counfel, and the Do6tor's Principles, it feems to be un- 
avoidable. For how could an Indidment for Crimes 
committed under the Commonwealth otherwife be formed ? 
Surely it would not be proper to fay, That Trefpajfes 
committed under the late Republick^ were contra Pacem Ca^ 
roli Regis ; for he being out of Pojfejpon^ could not grant 
a Pardon. [View. p. 1 6. J He could aflford his Subjed^s no 
Prote&ion^ and therefore no Allegiance was due to him* 
fView^ P- 52. JDef p. 111] But after all, I find my- 
felf miftaken ; for it was Refolved by all the Judges.^ that 
the IndiBment for the Murder of King Charles I. Jhould con^ 
elude., contra pacem nuper Domini Regis, &: dignit. 
fuas, necnon contra pacem Domini Regis nunc, coron. 
& dignit. fuas. And it was likewife declared by them, 
That tho King Charles II. was de Fa6to kept out of the 


Croim d/' England averted, &g. Iz| 

Exercife of the Kingly Office by Traytors arid Rebels ; yet hi 
was King both de Fadlo and de Jure. [^Kelyng% Reports^ 
p. 1 1, > 5.] Now the Queftion is, Who were the better 
Lawyers, Bagot\ Counfel, or thefe Judges ? If the lat- 
ter, then Henry VI. was not fo much as King de Fa&o. 

The next Point feems to be peculiar to the Cafe of 
Henry VI ; and not extenfive enough to be applied to all 
Kings de Fa&o. It is this : A Man Jhall be arraign d for 
Treafon againft King Henry VI. in compajfing hU Death ; 
becaufe the faid King was not meerly an Vfurper^ &c. I fay, 
this is a Privilege, which belongs only to fuch Kings, as 
are not meerly VJurpers ; and therefore will not prove the 
Authority of Kings de Fa&o in general ; which was the 
Doctor's proper Bufinefs. It is true, my Lord Chief Ju- 
ftice Hale fin his large Pleas of the Crown^ not yet printed) 
is of Opinion, That Treafins committed againji an Vfur> 
per, or Rex de Fad:o & non de Jure, Jhall be punijhed af 
ter the Regrefs and Obtention of the Crown by the Right Heir. 
But then he affirms this with fuch Limitations, as I fancy 
will not be very acceptable to the Dodtor : His Words 
are thefe ; {r) If there be a Treafon committed againji the (r) Hale V 
Vfurper^ which referrs not to the Competition of the True Heir^ pJac.^ol 
as counterfeiting the Coin or Seal of the Vfurper^ compajfing his ro"*> ^«^- 1* 
T)eath by Treachery .^ &c. thefe Tre$fons have been punijhed ' ^' 
notwithjianding the Regrefs of the Right Heir^ and in hU Time^ 
9 Edw. 4. I. 4 Edw. 4. 10. For thefe are indeed Offences^ 
that are rather againji the Intereji of Kingly Government^ than 
the Intereji of the Vjurper. But if the Treafins be fuch A^Sy 
as were done in the Right and AJfifiance of the Right Heir to 
the Crown ; thefe are purged by the Regrefs and Obtention of 
the Crown by the Right Heir. 

I I N T R E A T the Reader now to judge, whether the 
fame thing may not be faid, with relation to the fame 
Offences committed under a Commonwealth. Are they 
not fuch, as are rather againft the Intereft of Government 
in general, and therefore deferve to be punifhed even by 
a King de Jure at his Refiauration ? To return to the 
Points of Law infifted upon by Bagoth Counfel ; they 
add, Any Gifts or Grants made by King Henry, which were 
not to the Diminution of the Crown^ Jhall be made good. If 
thefe Words are to be underftood without any Reftri- 
dion, they are not true ; for Edward IV. did by A6t of 
ParliamentvacatefeveralGrantsof Hf«ry VI. which were 


VZ4 The Hereditary Right of the 

hot to the 'Diminution of the Crown ; and furely the Coun- 
lel would not lay, he could not do that lawfully, which 
Jie had adually done by Law. But if they mean no 
more, than that many Gifts or Grants made by King Hen* 
ry, which were not to the Diminution of the Crown, Jhall be 
made good', this will admit of no Difpute : But then 
what Reafon can be affign'd, why a Commonwealth 
fhould not have the Benefit of the like Plea ? The laft 
Particular, that was urged in this Cafe, was, That if he 
that is now King^ had in King Henry Vl.V Time granted a 
Charter of Pardon^ it would be mid now ; for ewry one that 
Jhall grant a Charter of Pardon^ mufi be King in Fa6i. This 
may in fome Senfc be true, and yet be of no Advantage 
to the Caufe of Kings de Fa&o: For if by Henry Ws 
.Time, we are to underftand the Time preceding the 4th 
of March^ when Edward IV. firft took upon him the 
Name and Authority of a King ; undoubtedly a Par- 
don then granted by the faid Edward^ could not be 
good ; becaufe he had not yet publifh'd his Claim to 
the Crown ', nor made ufe of the Regal Style. But the 
"'J^ Reafon fubjoin'd plainly fhews, the Counfel were of O- 
.i i ./ pinion, That no Pardon granted by a Prince out of Pojfejfion^ 
could be 'Valid. Now I might queftion whether this was 
held to be Law at King Charles II. 's Refiauration ; for 
when fome of the Regicides., at their Tryal, laid hold on 
'the King's Declaration made at Breda., as a Grant of 
Pardon; they were told by the Chief Baron and Solici- 
tor General, that it could only be a Pardon in Honour, 
not in Law; becaufe it wanted the Broad-Seal; which 
0) It does Anfwer (s) feem'd to imply. That if it had been under 
TnMmf ^^^ Brmd-Seal, it would have been a Legal Pardon, tho' 
Lay*, unup granted by a King out of PoffeJJion. But if the Dodor will 
Pardon ' infift upou it, 33 a good larp, that a King out of PofTef- 
fhTsriai ^°" has, no manner of Authority ; certainly, in the Time 
Seal. Thefe of King Charles\ Exile, Cromwell had as much the Bene- 
Z Sg^-'" fit of that Law, as if he had been King de FaBo. 
taznsmrdsy 1 HAVE flovv gouc through the Doctor's Points of 
t/ Mr?'' Law, and have Ihewed, that the Equity of them will un- 
Cooke doubted I V extend to all Governments, as well as to Kings 

Tryal 0} the. r-w 

Regicides, Ufi racto. 

f' 145- But, Secondly., If we underftand thefe Points of Law 

in their proper and natural Signification ; they prove no 
Hjore, than that under an Vfur^er the Courfe of yWicw/ 

t Proceed" 

Cronvn of England ajjerted, &CC. lif 

proceedings ought to go on, which confift partly of A&s 
ofjiiftke^ and partly of A&s of Grace; of which latter 
fort were Patents of Naturalization^ as Judge Billing urged j 
that during the Exclufion and Exile of the Rightful 
Prince, the Order of Government rtiould ftill be pre- 
ftrved, and confequently tfie Laws put in Execution; 
and that therefore all fuch Adts as thefe, tho' performed 
by an Ufurper^ ffince they had no other End and Ten- 
dency, but to maintain the Peace and Quiet of Society 
in general, and did not directly oppofe the Claim, or 
weaken the Intereft of the Lawful Heir) ought in Rea? 
fon and Equity to be declared godd and valid to all In^ 
tents and Purpofes. This, I fay, is the utmoft, that 
can fairly be inferred from the Plea of BagotV Counfil^ 
without doing Violence to the plain and obvious Mean- 
ing of it ; and indeed it would not be reconcilable; 
with thofe avowed Principles, by Virtue of which Ed- 
wardlV. gained the Crown; nor confiftent with itfelf, 
were the Do(ftor*s Expofition of it admitted as genuine. 
It would not be teconcilable with the Principles that 
placed Edward IV. upon the Throne; becaufe it utterly 
deftroys the Diftinftion between King de FaBo^znd King 
de Jure^ by fuppofing Allegiance to be due only to the 
Prince in Pojfejfion. And for the fame Reafon it is in- 
confiftent with itfelf; becaufe it allows of this Diftin- 
dion, and confefles that Henry VI. was King only by 
Vfur^ation; a Term which manifeftly implies Unjuft 
PolTeffion ; and conlequently fuch, as the Law gives no 
manner of Countenance or Approbation to. On the o- 
ther hand, the Senfe which I have now given of it, is 
attended with no Jnconveniencies, nor liable to any Ob- 
jections. It maintains inviolably the Right and Autho- 
rity of Kings de Jure ; and yet allows to the Judicial A&s 
of a King de Ei&o^ and all other that were done purely ~ 
for the Prefervation of the Community, an equitable 
Title to a Confirmation from the King de Jure. And 
this indeed is all that Bdi^ot's Counfel had Occafion to 
demand ; for this being admitted, they had Reafon to 
hope, the Patent of Naturalization^ granted by Henry VI, 
would come under the Denomination of a Judicial AH ; 
and then their Clients Caufe could be in no Danger. 

I MUST beg Leave to obferve one thing m.ore, be-» 
fore 1 have done with this tedious Plea ; and that is, 

K k that 

ll6 The Hereditary Right of the 

that the Counfel argue only for the Validity of the A(3s 
oi Henry VI,) not of Ufurpers or Kings de FaBo in gene- 
ral,as the Dodor does ; for they tell us,that Henry was King 
in Pofleffion ; and that though he was fo by Vfurpation^ yet 
he was notmeerly an Vfiirper. But it ought not to be from 
hence inferred, that this muft be the Cafe of every King 
de Fa&o ; or that all Kings de FaBo ought to have the 
faqie Privileges^ that it might be thought reafonable to 
allow Hmry VI : For every Ufurper may not have the 
fame Plea, as thofe of the Houfe oi Lancafier had, efpe- 
cially the two laft of them, who had obtained the Pro- 
mifes and Oaths of the Vnloubted Heirs^ for the Security 
of their Reign. I do not fay^ the Houfe of Tor^ had 
hereby laid themfelves under any Legal Obligations^ never 
to lay Claim to the Crown ; for the Judgment given af- 
terwards in Parliament againft Henry VI, fhews the con- 
trary : But it may be very well doubted, whether thofe 
repeated Oaths, which were taken like wife with fo much 
Solemnity, ought not to have had a greater Weight up- 
on their Confciences, than it appeared they had ; and it 
is to be fi^ared, the Calamities which befell the F)uke of 
York and his Ifftie^ are in a great Meafure to be attributed 
to the little Reverence that Family paid to Oaths^ and 
the {lender Care they took to perform them. However, 
though Edward IV. pofTefsM hirnfelf of the Crown, with- 
out any Regard to thefe Obligations ; he could not but 
be feniible, that Henry VI. deferved to be con fid er'd with 
forae Diftindion, as one that had a Right to better Ufage, 
than Common Ufurpers; for he had lived under him 
many Years in great Honour and Profperity ; and feem*d • 
contented and fatisfied with his Government : So that 
he bad Rcafon to look upon the Ads of Henry VI. as 
done by his own Confent and Approbation; and there- 
fore might think himfelf obliged in Prudence and De- 
cency to ratify and confirm them. But the Dodor knows 
the Cafe is very different of Vfurpers^ who never had fo 
much as the Appearance of the Confent of the Right 
Heirs for their Pofleffion ; and therefore are neceffitated 
to maintain themfelves in the Throne by Force and Vio- 
lence. .. ,^ 

T H E Doctor's laft Remark upon this Cafe, is taken 
from Brook\ Abridgment^ whofe Words he fets down ; 
but they amount to no more than this, That it is faid^ 


Cro'wn of England afferted, &c. Si^ 

and riokcohttadi&ed^ that for Treafon ccmmitted a^amji a U'ltig 
de Fafto, the Party ffjall be arraign d under a King de Jure; 
How little this is to the Doctor's Purpofe, 1 have ah'eady 
in fome Meafuf-e fhevved ; and need at prefent only take 
Notice of the Method of Reafoning here made ufe of^ 
It isfaid^ and not contradiBed; be it fo : But is it not faid 
likewife by theoppofite Counfel, ^n^i not contradi&ed^ 
that the King Jf^Ufiot be in a worfe Condition^ than any com' 
mon Perfon ; and that therefore he Jhall^ at his Return^ de- 
feat all the mean Acts of the Intruder; and that the firft of 
Edward \y.l,whkh annuIJs all the A^s and Grants of 
PlenryVl.) was only ari Affirmance of Common Law? Dd 
Bagot's Counfel make any Reply to this ? Or do the 
Judges pafs any Cenfure upon it? Is not their Silence 
therefore as much an Argument of their Confent, on this 
Side of the Queftiori, as my Lord Brook would have it 
on the other ? 

There is indeed a remarkable Cafe in the Tear- 
Books^ not taken Notice of by the Doctor; which yet 
may be thought more to his Purpofe, than any of his 
other Citations from thofe Volumes : I fhall here there^ 
fore lay it before the Reader, that I may be acquitted of 
any Intention of concealing what may fecm to counte- 
nance the Opinion I write againft. It is this which fol- 
lows : f<-) Ralph Grey Knt. being taken in a&ual Rebellion 
againji: Edward IV, in the Caftle of Brambrough ; he was 
carried to Doncafter, and there deprived of the Honour of 
Knighthood in an ignominious Manner ; his gilt Spurs being 
hewed off his Feet ; his Sword and all his Armour being like- 
wife broken and taken fom him in the open Field. After this 
he was Beheaded ; and the Reafon of this Severity againji him^ 
was^ for his Perjury and Doublenefs.^ as well towards the late 
King Henry VI, as Edward IV, that now is. I confefs 
there is an Appearance of Difficulty in this FafTage, which 
I (hall endeavour to explain. 

W E are told by {u) Holinjhead^ that this Sir Ralph 
Grey had fworntobetruetolS,dwavd IV, and confequent- 

(t) 4 Edw. 4. 4 Term. Pafch. Et le Et le easife del eel pHnijhment de Itty en 

dtt Sir Ralph Grey fnit cary a Doncaftre, tiel maner, fmt per caitfe de fon Perjary 

& la fait Deprive del Honor del Cheva- 8c Doubleneffc que il avoit fait al Roy 

Her devant mtilts del People le Roy. I. fes Henry leSize jadis Roy, &c. & auxy al 

gilt Spores hevoes de fes pees , & fori ejpee Roy Edward le Quarr, qui ore eft, &c. 
(^ tout fon armour fnr luy dehrufe & («) Chron. A-D. 1463. 

fris de luy tn le champs, & puis il decolle. 

-128 The Hereditary Right of the 

ly had defeited Henry VI, to whom before he had taken 
an Oath of Allegiance ; but furely this could not be the 
Perjury and Doublenefs^ for which he is here faid to be pu- 
nilhed by Edward IV ; for then it muft have been unlaw- 
ful to embrace his Intereft ; and thofe numerous Attain- 
ders^ which were pafTed againft the Adherents of Ben^ 
ry VI, were fo many Inftances of the higheft Violence 
and Injuftice. Was Fidelity to the HquIc of Lancaster at 
the fame Time a Crime, and a Duty ? That is, was it 
Treafon againft Henry VI, to revolt from him, and at the 
fame Inftant, Treafon againft EdwardW^ to adhere to 
him ? Certainly no Government could be guilty of fuch 
a Contradidion ; or if it could, this wonderful Piece of 
Jufiice would have been moft confpicuous in the Execu- 
(A-)5«Ho-tion of the Duke o^ Somerfet; who {z) was moft re- 
cli?'^"' markably guilty of a Breach of his Allegiance to both 
thofe Princes ; and yet we no-where find this Doublenefi 
charged upon him, as Part of his Indictment. My 
Lord Chief Juftice Hale therefore delivers it as his Opi- 
nion, that this Perjury and Voublenejs againft Henry VI, of 
which Sir Ralph Grey is here accufed, muft be underftood 
of fome A6t of Treafon he had committed in the Reign 
of that King, which was not intended for the Service of 
Edward IV, the Rightful Heir. But his own Words will 
beft explain his Meaning, which I fliall therefore here 
OJMS-Hift. fet down, (y) It is Treafon in any SubjeSf^ while an VJur- 
nsj.i. c°o. P^^ '-^ ^*" f"^^ fojjejfion of the Sovereignty^ to pra&ife Treafon 
againfi his Perfon. And therefore although the true Prince re-- 
gain his Sovereignty^ yet fuch Attempts againft the Vfurper in 
compajfing his Death^ have been punijhed as Treafon., unlefs 
they were Attempts made in th^ Right of the Rightful Prince ; 
or in Aid^ or Affiftance of him ; becaufe of the Breach of 
Liegeance^ which was temporarily due to him who was King de 
Fa(So. And thus it was done., 4 Edw. 4. 40. 9 Edw. 4. 2. 
though Henry VI. was declared an Vfurper by AS of Par' 
liament.^ the firfi of Edward IV. And therefore King Ed- 
ward punijhed Ralph Grey with Degradation., as well as 
Death., not only for his Rebellion againfi himfelf but alfo pur 
caufe de fon Perjury & Doubleneffe qu'il avoit fait al 
Roy Hen. 6. Thus did that lllujirious Ornament of the 
Bench underftand the Cafe I am now fpeaking of; from 
whence it is plain, his Opinion of the Powers which be- 
long to a King de Fa&o, is not in the leaft prejudicial to 



Cro^wn of England ajferted, &CC. lip 

the Rights of a King de Jure ; for it fuppofes the Allegi- 
ance due to a King de Fafio^ to be only Temporary and fub- 
ordinate; and that it could not deftroy the indefeafibJe 
Title of the King de Jure ; as the Local Allegiance which 
an Englijh Subjtd owes to a Foreign Prince, while he 
continues in his Dominions, does not extinguifli the 
prior and indifpenfable Obligation he is under to his 
Natural Sovereign ; but when his Duty calls, and Op- 
portunity favours, he is bound to attend the Commands 
of his I-awful Prince. So that if this Expofition of the 
Cafe before us is admitted and allowed, the Friends to 
the Dodor's Notion will be no great Gainers by if. But 
I inuft confefs, as reafonable as this Solution of the Diffi- 
culty may feem to be, I am by no means inclined to al- 
low this pretended Cafe any manner of Authority in the 
prefent Queftion ; for 1 am perfuaded, it will be found, 
upon Examination, to have no Right to any Place in the 
Tear-Books. I am fenfibl*^, it becomes me to be very cir- 
cumfped:, when 1 advance any thing that is lingular in a 
Part of Learning, with which I am but flenderly ac- 
quainted : I (hall only therefore propofe my Opinion, 
with the Grounds of it ; and leave its Probability to be 
determined by thofe^ whofe Profeffion has qualified thenl 
to be proper Judges. 

I PRESUME to take It for granted, that the Tear^ 
Books are only authoritative, as they are faithful Re- 
ports of Proceedings in the Courts of Common Law ; as 
they reprefent the Pleadings., and relate the Judgments 
given, in the feveral Cafes, with Truth and Fidelity: 
For which only Reafon they have been from Time to 
Time approved and recommended by the Judges, as pro- 
per Guides and Direftions for Practice in their Courts. 
If it (hould appear therefore, that fome Cafes, or Paflages, 
are inferted as adjudged in thofe Volumes, which were: 
never pleaded before either Bench, and are not proper- 
ly cognizable by them ; their Credit ought to be fufpedl- 
ed, as not fufficiently warranted ; and to be fure they 
can never have any Influence upon Proceedings at Com> 
mon Law. Now the Cafe before us is certainly liable to 
this and other Objedions. As firfl-, it contains an Hifto- 
rical Relation of the Succefs of Edward IV, againft the 
Rebels in the North, which could not poffibly be plead> 
ed in any Court of Judicature ; for if it had been ever 

L 1 pleaded. 

130 The Hereditary Right of the 

pleaded^ It muft have been at the Tryal of this Sir Ralph 
Grey^ to whom it chiefly relates : But it is evident, fe- 
veral Hiftorical Paflages occurr in it, v/hich did not hap- 
pen till at leaft five Years after: For Inftance, it appears 
from this Cafe, and our Chronicles agree with it, that 
Sir Ralph Grey was carried to Doncafter^ and Beheaded 
foon after he was taken, which fell out in the fourth Yeaf 
of Edward IV.'s Reign ; but it is manifeft likewife from 
this (z) fame Cafe, that Sir Humphrey Nemlk^ who was 
taken about the fame Time, was not executed till five 
Years after. This Cafe therefore could not be pleaded at 
the Tryal of Sir Ralph Grey ; neither can it be pretend- 
ed, that it was then drawn up as a Report of the Pro- 
' ceedings that then happen'd ; fince it contains an Account 
of fome Matters of Fad, which did not come to pafs 
till feveral Years following. Secondly^ The Proceedings 
here mention'd at the Tryal of this Sir Ralph Grey^ are 
not ufual in the Courts of Common Law ; but feem ra- 
ther to be the Practice of the Court Marjhal : And the 
Truth is, (a) John Stow aflures us, that Sir Ralph Grey 
had Judgment given upon him by the (b) Earl of Worcefter, 
High ConfiaUe of England ; whofe Relation of this Mat- 
ter is approved of by Mr. (c) Selden ; fo that then this 
Judgment was given in a Court Marjhal^ (d) where abfo- 
lute Power^ and not the Laws of the Land^ take place ; which 
muft very much increafe our Wonder, how it came to 
find Room in the Tear-Books^ which were moft certainly 
drawn up and publifhed for the Service of the Commons 
Law Courts. We are not like to be refolved therefore by 
this Cafi^ in the Queftion about the Authority of Kings 
de FaHo ; for when we enquire after their Power, and 
defire to be informed by what Laws they pretend to chal- 
lenge Allegiance ; I believe few will be contented with 
fuch an Anfwer, as referrs them only to Martial Law for 
Satisfadtion. Thirdly^ We have juft Exceptions againft 
this Report^ if it may be called fo^ in another refped: ; 
and that concerns the Truth of the principal Fadts re- 

(z) Stovf fays the fame, Chxon- -p. ^22. Men ef Quality, CamdenV Britannia^, 

{a) j4nnals, p. 418. 4t the £;j(i 0/ Worcefterftire. 

{b) ]ohn Tiptoft Earl of Worcefter, {c) Titles of Honour, c. 5. p^ 654. 

leing ruade Confiahle of England by Ed- id) Dr. Higden'j Defence of his VieWy 

ward 4. ^Uyed. the Part, as it were, of p. 85. ^ntC Jee Sir Fmnciahicon't Qfe' 

the Bmchtr in the erncl Exemion of divers of the Poftnati, p. 53. iff his Relufciu- 

ijo, aricerrting Martial Lm. 


Croim of England affer ted, i:£d - f^t 

iated in it. We are told in this Cafi^ that Sk Ralph Grey 
was aftually degraded of the Order of Knighthood^ in an ig- 
nominious manner; That his gilt Spurs were hewen of his 
Feet^ his Sword and all his Armom broken and taken front 
him^ &c. But in ^ohn Storvs Account, which has had 
the Honour to be credited by Mr. (e) Selden^ this Part of CO TitUsof 
the Sentence, which related to Degradation^ was par- ^,"6^^' *^" ^" 
don'd. It may not be amifs to fet down Mr. Stovp's 
Words, that the Reader may the better judge of the Dif> 
ference between him and the 'Year-Books. 

(f) 5/r Ralph Grey /je/'n^/^fl^en mBamborough-Caftle^ cD stow't 
for that he had fvoorn to be true to King Edward, was con- ^^'*^^7 P- 
demned^ and had Judgment given upon him by the Earl of 
Worcefter, High-Con ft able of England, as followeth. 

Sir Ralph Grey, for thy Treafon the King had ordained^ 
that thou Jhouldeft have had thy Spurs firiken off by the hard 
Heels., by the Hand of the Aiafter-Cook., who is here ready to 
do., as was promifed thee., at the Time that he took off thy 
Spurs., and faid to thee as is accujiomed : That and thou be 
not true to thy Sovereign Lord^ he /hall fmite off thy Spurs with 
his Knife hard by the Heels ; and fo Jhewed him the Mafter- 
Cook., ready to do his Office with his Apron and his Knife. 
Moreover., Sir Ralph Grey, the King had ordeyned here., 
thou mayefi fee., the Kings of Arms and Heralds., arid thine owri 
proper Coat of Arms which they Jhould tear off thy Body ; and 
fo jhouldeft thou as well be difgraded of thy Worjhip., Nobles^ 
and Arms., as of thy Order of Knighthood. Alfo here is ano^ 
ther Coat of thy Arms reverfed., the which thou Jhouldeft havi 
rvom on thy Body., going to thy Deathwards ; for that belong" 
tth to thee after the Law : Notwithftanding.^ the Difgrading 
cf Knighthood., and of thine Arms and Nobles the King par- 
doneth ; for thy Noble Grandfather^ who fufferd Trouble for 
the Kings moft Noble Predeceffors. Now., Sir Ralph Grey^ 
tbisjhall be thy Fenance : Thou /halt go on thy Feet unto the 
TownS'end., and there thou /halt be laid down., and drawn to a 
Scaffold made for thee., and thou /halt have thy Head fmitten 
of., thy Body to be buried in the Fryars, thy Head where the 
Kings Fleafure /hall be. This Judgment was pronounced at 
Doncafter againft the faid Sir Ralph Grey, for rebelling and 
keeping of the Cafile of Bamborough againft King Ed> 

Here Mr. Stow has given us the whole and entire Judg- 
ment^ which was pronounced by the High Confta> 


131 The Hereditary Right of the 

ble agalnft Sir Ral^h Grey ; from whence it is evident^ 
that he was not degraded, neither was his Douhlenefs a* 
gainft Henry VI. any Part of the Sentence againft him ; 
which (^ I take to be a ftrong Prefumption at leaft, 
againft the Authority of this Cafe. 

W E have now done with Bagois Cafe ; but the Do- 
61or has more Obfervations in referve from the Tear^ 
Books^ which he fancies do abundantly fupport his Caufe. 
His next Inftances are from the Grants of Richard III. 
which he tells us were allowed, and never controverted 
in the Courts of Henry VII ; and then he proceeds to 
the Declaration of Henry VII.'s Judges, That the Crown 
takes away all manner of Defe&s and Stops in Blood ; of 
which he feems to be extremely fond ; he calls it Deci- 
five for the Authority of the King in Vojfejfion^ and fancies 
it is impoffible to give it a folid Anfwer. I fliall how- 
ever venture to try the Force of thefe mighty Arguments 
in their proper places ; and in the mean time Ihall de- 
fire Leave to go through the Reign of King Edward IV", 
before I take Notice of the Doctor's Evidences from that 
• of Henry VII. 

The laft Obfervation the Dodor pretends to make 
from the Tear-Books of this Reign is, (h) That by the 
Common Lave of this Realm Kings de Fadlo are Legi/IatorSj 
or are iiefied with the Legiflative Authority. For (fays he) 
• in the Year-Books (?/ Edward IV. the Statutes of the Lan- 

caftrian Kings are pleaded as Statutes of the Realm^ of equal 
force and Validity with thofe made by Edward IV. hirnfelf. 
I anfwer, this may be true, and yet not fufficient for the 
Doctor's Purpofe ; for thofe Statutes of the Lancaftrian 
Kings^ which were pleaded and allowed in the Courts 
of Edward IV, were at that very Time widable by that 
King ; and might have been declared of no Force or Va^ 
lidity^ whenever he thought fit ; but till fuch a Declara- 
tion was made, the Courts of Juftice could not look upon 
them as adually void. So that their Exiftence was pure- 
ly precarious ; and they lived wholly by the Permiffion 
of Edward IV, not by Virtue of any Authority they de- 
rived from the Lancaftrian Kings. And then the Diftin- 

(g) This p4trt of the Sentence is alfo for that he had fworn to be true to 

omitted by Holinfhead ; for hts fVords King Edwtcrd, ; rrithout tnemioning any 

Are, That Sit RA^h Grey was Degraded Tretifon againfi Henry Vl. : 

and Beheaded for his manifeft Perjury, (h) Vim of the Engl, Gnft. p. 21. 


Croivn ^f England averted, ^C. 15 ^ 

€Hon between Kings c^e FaHo and de Jure is beyond Con- 
tradidion evident ; if the Adis of the former are wid- 
able by the latter, and not, vice iJerfa^ the Adts of Kings • 

de Jure voidable by thofe de Fa&o. I expert indeed it 
(liould be faid, that all this is affirmed without Proof ; 
and I confefs it is fo : But I muft intreat the Reader's 
Patience for a few Pages, and then I {hall be at Leifure 
to give him Satisfaftion in this Point* 

I N the next place the Do6tor (i) afTures us, That CO ^^'"-i 
not only the Courts of Edward IV, but he himfelf in ^' ^^' 
his A^s of Parliament, had own'd the Lancafirian Kings 
to be Legiflators^ and their Laws to be of equal Force and 
Authority with the Laws of any of hU Anceflors^ or with hLs 
own. And his Way of proving this is as follows : The 
14^/^0/ Edward IV, cap. 3. recites at large a Statute made 
the <)th of Henry V, for the VroteBion of all Perjons^ that 
jhould go with thefaid King into France, or were there in his 
Sernice^ from being h^ort-Juited at the Ajfizes^ &c. whilfl: they * 

were ahjent ; which A& was to continue till the firfi Parliament 
afer the King's Return into England, After this Recital 
King Edward IV. and his Parliament ena&^ That the fame 
Order and ProteBion Jhall be objervd., and be as available for 
all manner of Perjons, that Jhould pajs into France with him^ 
OJi it was for fuch Perjons^ as did pafs over the Sea with the 
faid late King Henry V : And that all fuch Perfons^ as /hall 
now pafs over the Sea with our Sovereign Lord the King^ Jhall 
have and enjoy in every Pointy all manner of Advantages.^ as 
the faid Perjons Jo fajjing over the Seas with thefaid late King 
had by this faid Statute. Here we fee (fays the Doctor) that 
Edward IV. declares the Validity of that Statute^ during the 
Time for which it was made^ to be equal to this made by him- 
felf", and challenges no more Authority for his own Law^ than 
he acknowledges that had. 

This is the only Inftance, it feems, he could meet 
with among Edward IV.*s A(5ts of Parliament; and now 
the Wonder is, what Service it will do him. Ed^ 
ward IV. fays, That an Ad made by Henry V. was avail- 
able to all the Purpofes intended by it ; which was un> 
doubtedly true; for all thofe that pafs'd over the Sea 
with Henry V. did certainly enjoy great Advantages from 
this Statute. But the Dodor will have it, that Ed^ 
•ward IV. does in Effed declare.^ that Statute was valid du" 
ring the Time for which it was made ; very right, if he 

Mm means 

134 The Hereditary Right of the 

means only, that it was de Fa&o valid, as it was obeyed ; 
but if he would inferr from it, that therefore Henry V. 

• W3S a King de Jure ; he muft pardon me, if I cannot be 

of his Opinion ; for I cannot eafily perfuade myfelf, that 
Edward IV. who treats his PredecefTors of the Houfe of 
Lancafier with the odious Name o^Vfiirpers; ftyles them 
pretenfed Kings^ and would not allow their Judiciul Pro- 
ceedings to be good without Confirmation ; who declares 
even their JSis of Parliament pretenfed A&s^ and vacates fe- 
veral of them exprefly for Want of Authority in the 
Makers of them ; as will appear fully in the Sequel of 
this Difcourfe ; and Lafily^ who in this very A6t, we are 
fpeaking of, calls Henry V. King de FaHo, and not de 
jure ; could ever intend, the World (hould believe, he 
thought that Prince had a Legijlative Capacity. The 
Dodor may flatter himfelf as he pleafes, thatthefeareno 
Contradidions ; but 1 muft beg Leave to indulge myfelf 
• in my Perfuafion, that no candid Reader, who ferioufly 
examines the Importance of thefe Expreffions, and dili- 
gently obferves the Style of thofe Afts, which pafled a- 
gainft the Title and Government of the Houfe of Lan* 
cafter^ will allow it to be pofiible, that the Pafifage now 
in queftion can fairly be underftood in the Doctor's Senfe. 
But I need not give myfelf the Trouble of a nice Exami- 
nation of every thing he may think proper to fay upon 
this Argument ; fince all that can poflibly be urged, will 
be effedtually anfwer'd by a View of the Proceedings of 
Edward IV.'s Parliaments; by which it will appear, that 

I all the ASfs of the Three Henrys were held to be defective 

in Point of Authority : And then certainly thofe Prin- 
ces could not have a Legijlative Capacity^ who had none at 

I s A Y, all the A^s of the Three Henrys were held to 
be defe<fiive in Point of Authority^ in Edward IV.*s Reign. 
Now their A&s were either fuch, as were done out of Par^ 
liamenty or in it. That thofe that were done out of Par- 
liament, were not look'd upon as valid, is evident from 

(i) iEdw.4. the Confirmation of them by ( fc ) Edward IV. For why 
were they confirmed, if they did not need it ? If their 
Authority was not at leaft queftionable, and liable to 
be difputed without it ? The Doctor may here tell us, 
if he pleales, that a Confirmation does not always im- 
ply a Want of Authority in that which receives it; 


Cromt of England afferted, &g. 1 J 5* 

becaufe Magna Charta was confirrii'd feveral times : But 
lurely that could not be the Meaning of the Parliament 
in the preient Cufe ; for the Preamble of the AH afifures us^ 
that the Confirmation there granted was in efchewing ofAm^ 
biguities^ Doubts^ and Diver fit tes of Opinions^ which might rife^ 
enftiBj and be taken of Judicial ABs^ Sec. But thofe Doubts 
and Ambiguities could only happen upon account of the 
Power, from whence they proceeded ; for upon the Con- 
firmation of them it is added, That theyjhall be of like Force^ 
Virtue^ and Effed:^ as if they had been done in the Time of any 
King lavcfuUy reigning^ See an undeniable Proof, that it 
was the Want of Authority in the Prince only, which 
was the Reafon of their Confirmation. Befides, we (hall 
find prefently, that fome of the AH s of Parliament of the 
Three Henrys^ became void purely upon King Edward\ 
refufing to confirm them : And then furely it will be 
granted, that their AHs of lefs Moment and Authority, 
ftood much more in need of a Ratification from the King 
de 'Jure. And Laftly^ if the Dodor fhould infift upon it, 
that the Confirmation given by Edward IV. added nothing 
to the Validity of thofe AHs., for the Benefit of which it 
was intended; may it not be with as much Reafon af- 
firmed, that the (I) Confirmation granted to the Judicial 
AHs^ &c. of the Commonwealth and Oli'ver Cromwell.^ wag 
equally unnecefifary ? I fhall prefume therefore to believe 
it to be an undoubted Truth, that the Confirmation allow'd 
to the ABs of the Three Henrys did imply, that they 
were not of fufficient Authority without it. {m) And if 
this is really the Cafe, this alone difcovers fuch a De- 
feat of Power in Kings de Fa&o.^ even tho' their AHs 
of Parliament fhould be allow'd to be good, as will fuffi- 
ciently vindicate thofe, who diftinguilh them from Kings 
de Jure: For if we take a particular View of the feveral 
Extra-Parliamentary AHs^ which only became valid by 

Cl) 1 2 Car. 2. 12. Land and of the Body with the Mar- 

Cm) For a full and undeniable Proof, riage of John Kenn Son and Heir to 

that the Extra- Varliamentary j4^s of the Rmrt Ktnn by our Letter* Patents fith 

Three Henrys became nf no Authority xpo>t the Time of our Reign. And that aJl 

Edward IV.'^ Accejfion to the Crown, the Grants made by Henry VL iate King in 

fttlomnp Pajfage is very remarkable. A- Deed and not of Right, to "^ames late 

tmng the Provifoes to the AU of Rejum- Earl of Wiltjhire, or to cny other Per- 

piien, I Edward IV. is this that follovis. fon or Perfons, of tlie (aid Ward and 

Rot. Pari. I Edw. IV. Provided alway. Marriage, be of fuch Force and Effeft, 

that this Aft extend not, nc in eny wife as they were the firft Day of our Noble 

be prejudicial of cny Grant made by us Reign, and no better^ 
to R'uhard Arthur Ef<u of the Ward of 

^ the 

1 5(5 The Hereditary Right of the 

the Confirmation of Edward IV ; we (hall perceive, thaf 
as they were many in Number, and various in their 
Kinds ; fo they were all EfTential to the very Being of 
Government; which cannot poffibly fubfift, where a 
Power of performing them is Wanting. Let the Reader 
only be pleas'd to try the Experiment, and fee whe- 
ther he can form any other Idea of a King de FaBo^ 
from the Statute which confirms the Judicial AHs^ &c. 
of the Three Henrys, than this which follows. 

H E is a Perfon that is not legally qualified to give a 
Commiffion to Judges^ neither are the Proceedings in his 
Courts of Judicature (n) of any Authority. He cannot 
{o) create a Nobleman^ or (p) make a Bijho^ ; and what- 
ever Liberties, Privileges, and Immunities, S'<:. he grants 
to Cities and Corporations^ they are of no Validity. His 
Licenfes of Mortmain^ and Prefentations to Benefices^ are 
voidable ; and even hisGrants of Wards and Marriages^ 
Fairs and Markets, are revokable at the Will and Plea- 
fure of the King de Jure. He (cj) can neither give a Penfion 
nor a Corrody ; and efpecially all Lands beftowed by him, 
are refumable, whenever his Rightful SucccfTor is pleafed 
to make ufe of his Authority. More Inftances might be 
obferved in the printed A&s and Rolls of Parliament., be- 
fides what 1 have here recited ; which would abundantly 
prove, that the Authority of Kings de Facto., as afilerted 
by the Doctor, was a Secret in our Confiitution not then 
difcover'd ; for had that been an uncontefted Dodrine, 
thefe Ads cf Kings de Facio had never received, nor 
needed a Confirmation: And it will not now be thought 
ftrange, if what the (r) Dodor had before affirm'd^ 
Ihould be true, 'uiz. That the Grants., Licenfes., Letters 
Patent., Gifts., &c. of the Three Fi^mys., are pleaded and aU 
lowed in ad the Judicial Proceedings of Edward IV.'j Courts 
of Judicature to be 'valid, &c. for it is plain they were 
confirmed by Edward IV., and thereby acquired an ef- 
fedlual Force againft all Oppofers of their Authority; 

(«) A^y Lord Chief Jujike Coke fays, Lancafter ; jet the Record affntes us (Rot. 

Treafon lies only againft a King de Fa- Pari, i Edw. 4. f. A.) that he did it up- 

Sa ; but we find Judgments for Treafon, gi- on this Condition, that the (aid Noblemen 

ven in the Courts of the Kings of the ihould have new Grants from him, of 

HoMfe of Lancafter, conprm'd, i Edw. 4. their Annuities for the Suftentation of 

(0) It is fit here to obferve, that though their Eftates. 
Kin)^ Edvrard, at the Requefl of his Com- (p) Rot. Pari. I Edw. 4. 

mons, did confirm all Titles of Honour, (q) Ibid. 

conferred bj the Kings oj the IIvnfe of (r) Fieiv^ P- JJv 

Cromt of England ajferted, &c. * 1 5 7 

but then it muft be confefs'd, they owed their Validity to 
that Prince, not to the Three Henrys. So that whatever 
may be the Power of Kings de Fa&o in Parliament, it is 
clear from the above-mentioned Inftances, that they have 
fo little out of it, that the common Ends of Government . 
are not attainable under them. 

But the Doctor is confident, the Adts of Parliament of 
the Three Henrys ftand upon a fure Foundation ; for he 
(s) tells us, they have been always held valid, though never con^ 0) t^hp; 
firmed) and therefore (fays {t)h&) when that which is the ^' J?j ;^,^^- 
higheji AB of Government is valid ^ none of the reji of their Regal P- 22. 
Aks can reafonahly be dijputed. Upon this Occafion the Do- 
ctor will pardon me,if I put him in mind of a (a) Complaint ^('') P''^"^* 
he has made againft his Adverfaries, that they did not duly /w«. 
confider, that all his Arguments are built upon Matters of 
FaB^ which can only be anfwerd by denying them. Here 
therefore he plainly tranfgrefles his own Rule, by argu- 
ing 'dgd\n^ Matter of FaEi y for he very well knew, that 
all the other Royal ABs of the Three Henrys were not held 
to be valid, as the Confirmation of them manifeftly im^ 
plied ; and this was worfe than dijputing them ; for it 
was putting their Want of Authority out of Difpute. Be- 
fides, was not their Authority difputed in Bagot's Cafe? 
Was not the Validity of Henry VI. 's Letters Patent the 
Point, that was chiefly controverted ? Certainly this is a 
Truth the Dodor himfelf will not difpute ; and if I mi- 
ftake not, it deferves his particular Notice, that this 
Difpute lafl:ed feveral Terms, and took up at lead two 
Years before it was ended ; fo unreafonable were the Law- 
yers of thofe Times, and fo ignorant the Judges, of the 
Conftitution. Since therefore the Matter is really thus, as 
1 have reprefented it ; fince likewife it is a Rule not to be 
difpenfed with in Enquiries after Truth, that doubtful 
Propofitions are to be examin'd by thofe that are evident 
and certain, and the contrary is indeed impradicable ; 
why fhould we not rather inferr, from the Confirmation^ 
which we are fure was granted to many of the Regal A&s 
of the Three Henrys.^ that the reft alfo wanted it ; than 
affirm with the Dodtor, (without fufficient Warrant and 
Authority) that the ASis of Parliament of thofe Kings 
were held good without Confirmation.^ and therefore that all 
their other Ads ought to have been efteem'd fo too ? I 
am fenfible,! am now upon a Point, which deferves well 

N n to . 

138 The Her edit ar J Right of the 

to be confider'd ; and I (hould deceive my Reader's Ex*! 
pedation, if I did not explain myfelf fully upon it; - 
I fay therefore, that the Doctor has (x) affirmed, without . 
fufficient Warrant and Authority, that the A6ts of Par-> 
liament of the Three Henrys were held good without 
Canfirmation : And I will prefume to add, that he here 
again violates that Refpei51", which he profefifes to be due 
to FaSi. For, 

Firftj It evidently appears from fome Inftances up- 
on (y) Record, that Confirmation was denied to fome ABs 
of Parliament of the Three Henrys • and that the Effect of 
that Denial was, that they were efteemed of no Autho- 
rity. Thus, among other Petitions, the Commons pray, 
That all ABs of Parliament^ afore this Time made^ for Pay" 
inent and Contentation of Fees, Rewards^ and Cloathing of 
your Jujiices^ Barons of your Exchequer^ Serjeants at Law^ 
Attorney^ 8i.c. be good and in Force. To this the King an- 
fwers; As to thU Article , it is thought necejfary^ that they be 
truly paid ; but not to affirm their Aj/ignment of Payment and 
Contentation by Authority of Parliament ; but that it be at the 
Kings Pleafure. Here we fee an A&: of Parliament lofes 
its Force only for want of Confirmation ; the bare Denial 
of which, in that publick Manner, was equivalent to 
annulling^ or declaring it void. Another Inftance is this 
which follows, and that, I think, not a little remark- 

I T E Id, (z) Prayen your Commons^ that all A&s made by 
Authority of eny Parliaments^ holden in the Time of the pre- 
tended Reigns of eny of the faid late Pretended KingSy for 
Contentation or Payment of eny other Sum or Sums of Money, 
due unto the Mayor and Felawjfhip of Merchants of the Staple 
o/Caleys, /or the Time being; for Money lent by them to 
eny of the faid late Pretended Kings ^ or for Payment of Usages 
of the Captain and Souldiers of the Town of Caleys, and the 
'Adarches there ; be in their Force and EffeSf., and available to 
the Felavpjhip and Merchants of the faid Staple novo being.^ and 
, to their Succefifours^ for Contentation and Payment of the faid 

Sums of Money yet remaining due and unpaid to them^ fpeci* 

(jc) The DoElor fays it again in his Pre- firmation, or pretended Confirmation; 

jace to his Defence ; All the Publick Sta- and have been recited as fuch by Kings 

mtes which were made by Kings de de Jure^ and their Parliaments. 

J^aUo, have ever had the Force of Laws {y) Rot. Pari. I Edw. 4. 

of this Realm, &c. without any Con- (*) Ibid, 


Cr(mn of England afferted, &c. 1 5p 

ped in eny of the [aid Afis of Parliament^ Sec. But the 
King's Anfwer was. This Article is rejpited; and if I re> 
member rightly, it (a) was not till four Years after, that (^) Rot.Pari, 
the Rolls of Parliament tells us, there was any Provifion J ^^.'*' '^'■ 
made to lecure the Payment of thofe Debts. So that 
here is a National Deht^ contra<Sed upon Parliament Securi- 
ty^ (very probably for the Carrying on a War againft 
France^ as well as for the Payment of the Garrifon of 
CaJaU) in Danger of being entirely defeated, had not 
King £f/irW at laft, by his Royal Affent^ entitled it to a 
Legal Payment. What will the Doctor now fay to this? 
Will he perfuade us, that thefe were no A6ts of a pub- 
lick Nature ? Or rather, may we not hope, that he will 
retradt the following Paflages, which, it is to be fear'd, 
have had too much Credit with many of his Readers ? 
No body^ fays the (b) Dodlor, has been able to produce one {h) Defence; 
/ingle AEi^ of all the numerous ABs that were made by the P-7°> "'^ ^^' 
Three Kin^s of the Houfe of Lancafter, that was efieem^d to 
want the Confirmation o/^Edward IV ; for without it they were 
held to be of as good Authority^ as his own A&s. And a- 
gain ; / haue Jhewed^ that there was not one of the numerous 
Puhlick A&s, that were made in the Reigns of the Three 
Henrys, ever confirmed ; and yet ftood^ and (except fuch of 
them as ham been repealed) do fiand in Force at this Day. 
Thefe Expreffions are ftrong and peremptory ; and 
would indeed anfwer the Dodtor's End, if there were 
any Truth in them ; in which refpeft I muft have Leave 
to lay, they are now vilibly defective. The Reader will 
undoubtedly obferve, that the Inftances I have here re- 
cited, of Acts of Parliament of the Three Henrys, which 
became void by being denied a Confirmation^ are not to be 
found in the printed A£i of Parliament of the firft of Ed- 
ward IV. And true it is, that they are there omitted, 
as well as fome other Matters, very worthy of Regard in 
this Controverfy ; but he will meet with them in the 
Rolls of Parliament, which I prefume will be as much to 
his Satisfaftion. And now, though 1 do not pretend to 
produce any more Inftances of Acis of Parliament^ which 
-became void by being denied Confirmation ; I would how- 
ever ask, whether thefe Two are not fufficient for my 
Purpofe ? If they had an original complete Authority 
■before Edward IV.*s Time, I would fain know, how 
they came to need his Confirmation. And if they didj-not 


140 The Hereditary Right of the 

. need his Confirmation^ it would be a great Favour to inform 
me, how they became void by the Refufal of it. With 
the Reader's Permiffion, I would carry thcfe Queries a 
little farther : Did not the Manner of voiding thefe A6ls 
of Parliament plainly denote a Defedl of Authority in 
thofe that made them ? And might not the fame Defedl 
of Authority be objected againft every ASi of Parliament 
made by the Three Henrys^ as well as thefe Two ? The 
Dodor perhaps will ask, how then came any of the A^s 
of thofe Kings to be good, which do not appear to have 
been confirmed? But this is a Queftion I am not bound 
to anfwer ; it is enough for my Purpofe, if I can (hew, 
they were not good without the Approbation of the King 
de jure ; and that I think I have effeftually done ; and 
need not be folicitous, from whence they derived their 
Validity, provided they did not owe it to Kings c/e Fa&o. 
The Dodlor may gratify his Curiofity, if he pleafes, 
with fuch Enquiries; but for my part, I have Reafon 
to be contented with the fole Difcovery, that the Confir- 
mation granted to the Laws of the Three Henrys was 
purely, becaufe they were made by Kings de Fa^o ; and 
none were annulled, or became void, but for the fame 
Reafon ; for this is as good, as Ten Thoufand ArgU' 
ments, to demonftrate, that the Parliaments of Ed- 
ward IV. did not own the Legiflative Authority of his 
Three Predecejfors ; which is the Point now in Queftion 
between the Doctor and me. I might urge farther, 
that if the A&s of Parliament of Kings de Fa&o^ that 
were of greateft Moment, were not of Force without the 
Confirmation of the King de Jure ; then certainly the In- 
validity of the reft of XhQix ABs^ which were of lefs 
Confequence, could not reafonably he difputed : That is, 
fince it is evident, that the Security given by the Parlia- 
ments of the Three Henrys for Money borrowed for the 
Publick Service, (a Matter certainly of the utmoft Con- 
cern in all Governments) was infufficient ; it will follow, 
that all their other A&s of Parliament^ could not be efteem- 
ed of good Authority. 

Secondly, I fay again, that it is without fufficient War- 
rant, that the Doctor affirms. That all the ABs of Par^ 
liament of the Three Henrys were good, though not con' 
firmd ; becaufe it is manifeft, fome of them were de- 
clared void ; which would not have been done, faccor- 
^ ding 

Cro'von of England afferted, &c. 14 f 

ding to the conftant Pradice and Ufage of Parliaments) 
if they had been good ; for no A^ can be declared void, 
but what was defedlive in fome refpedt before ; but no^ 
other Defed can be affign'd, as a Reafon for fuch a De^ 
claration, in the prefentCafe, but only that of Authori' 
ty in the pretended Legijlators. Now it appears evident- 
ly from the Rolls of Parliaments (c) that all Statutes^ ABs^ (o Rot.Parl 
and Ordinances^ wade in and for the Hurt^ DeflruBion^ and ^ ^^""^ '^ 
Avoiding of the Right and Title of King Richard, or of his 
Heirs^ to ask^ cleyme^ or have the Crown Royal^ Power^ Ejiate^ 
'Dignite^ Preeminence^ Governance^ Ezercife^ Pojfejfions^ and 
Lordjhips^ &c. are ordained^ declared^ and ejiabli/hed to be ' 

*Voids and be taken, holden^ and reputed void^ and for nought^ 
adnulled^ repealed^ revoked^ and of no Force^ Value^ or Ef 
fe&^ Sec. For this Claufe being declaratory^ does not only 
imply, that they were not to be of any Force for the fu- 
ture ; but alfo, that they wanted it before. And this- 
cannot be doubted by thofe, that will give themfelves 
the Trouble of perufing the whole Aft ; in which it is 
affirmed, That the Right and Title of the Crown of Eng- 
land, after the Deceafe of King Richard II, by Law^ Cu- 
fiom^ and Confcience, defcended to Edmund Earl of March ; 
and that Faith and Ligeance was due to him ; and alfo Ri' 
chard Duke of Tork is faid, in his Life^ to have been very- 
Kings in Right^ of the Realm of England. Which Expref- 
fions could not poffibly have been ufed^ if they had riot 
look'd upon thole Adts of Henry IV, by which he en- 
deavoured to fecure the Succeffion of the Crown to his 
Iffue and Family, as ineffedtual for the Purpofes they 
were intended. And thus, when Henry VI. regain'd the 
Crown, and by forcing Edward IV. out of the King- 
dom, was fully poflefled of every Part of it ; what he 
did in Parliament, during that Interval, was entirely 
vacated by the faid Edward: The Ad: of Parliament, by 
which this Annullation was declared, is worthy of the 
Doftor's ferious Confideration ; and therefore I (hall 
tranfcribe it for his life. 

(d) Whereas in the moji dolorous Abfence of our Sovereign (^^ i^Edw. 
Lord the King out of this Realm^ being in the Parts of Hoi- 4- 7' 
land, and before his vi&orious Regrefs into the fame Realm ; 
in a tretenfed Parliament^ unlawfully and by ufurped Power 
fummoTid by the Rebel and Enemy to our Sovereign Lord the 
Kings Henry VI, late in Deed and not of Right King of ^ 

O England, 

142; The Hereditary Right of the 

England, holden in the Palace df Weftminfter the Twenty 
Sixth Bay of November, in the Ninth Tear of our Sove- 
reign Lord the King that now ij, under the coloured Title of 
the faid Henry, the Forty Ninth Tear of the Inchoation of his 
fretenfed Reign^ and the Firji Tear of the Readeption of his 
Vfurped Power and Efiate^ divers and many Matters were 
treated^ communed^ wrought^ to the Defiru&ion and Bijheri- 
fon of our Sovereign Lord the King^ and of his Blood Royal^ 
by the Labour and Exhortation of Perfons not fearing God, 
nor willing to he under the Rule of any Earthly Prince^ hut in- 
clined^ of fenfual Appetite^ to have the whole Governance and 
Rule of this Realm under their Power and Domination : Which 
Communication^ Treates^ and Workyngs^ doth remain in Wru 
ting^ and fome exemplified^ whereby many Inconveniencies may 
enfue to our Sovereign Lord the King^ and his Blood RoyaL 
which God defend^ and all Noblemen at this time attending 
about the King^ and all his other Liege People and Subjects, 
oneles due Remedy be provided in this Behalf Our faid So- 
'vereign Lord the King^ by the Affent of the Lords Spiritual 
and Temporal^ and at the Requefi of the Commons in the faid 
Parliament ajfembled^ and by Authority of the Jame^ for the 
Surety of his Noble Perfon^ his Noble Iffue^ and the Inherit 
table Succejfion of the fime^ and for the Surety of all the Lordsy 
Noblemen^ and other his Servants and Subje&s^ hath ordained 
and eftabli/hedy that the faid pretenfed Parliament^ with all 
the Continuames and Circumfiances depending upon the fame^ 
be mid and of none Effeli. And that all ABs^ Statutes^ 
Ordynmnces ^ Treates ^ Communications, Conventions, and 
Workyngs in the faid pretenfed Parliament treatyed^ commu" 
ned^ Sec. and all Exemplifications made upon the fame^ or 
any Part of them^ and every of them, Jhall be reverfedj can- 
celled^ wid^ undone^ revoked^ repealed^ and of no Force nor 
(0 rir». The Doctor is indeed (e) pofitive, that the Authori- 
P- 37- ty of thofe Laws^ which Henry VI. made on his Readeption 
of the Regal Dignity^ had been ownd^ if they had not been 
repealed by Edward IV. for thefe Statutes (as he is pleafed to 
affirm) made in the Forty Ninth Tear o/ Henry VI, did not 
fink of themfehesj as fome have imagined^ and urged for an 
Argument ; but were repealed and reverfed^ as my Lord Chief 
ju^ice Coke fays ; /or Edward IV.V A& doth not declare 
them void^ but ordain and eJiabUfh them to be void. A very 


Crmn ^/England ajferted, &c: 145 

acute and judicious Obfervation ! For then it feems (f) r/; Hoiinf- 
King EdwardlVh Friends ftood all this while attainted, ^"e^,^'""' 
his Iflue excluded the Succeflion, and his Laws repealed^ 
till the Time of paffing the A6t, which was the Space 
of eight Years \ for fo long it was, before he thought 
fit to annull the Proceedings of Henry VI. in his pre- 
tenfed Parliament. Now it muft be obferved, that Ed* 
ward IV. held a Parliament in the Twelfth Year of his 
Reign, and another in the Seventeenth, (when the A£fc 
we are now fpeaking of pafs'd) in which no attainted 
Perfon could poffibly fit; and confequently, during all 
this Space of Time, the Ads of Parliament made by 
Henry VI, being in full Force, according to the Doctor's 
Aflertion, Edward IV.'s beft Friends were incapacitated 
for Sitting in Parliament : The Doctor may believe this if 
he pleafes ; but I muft defire to be excufed. The true 
Reafon undoubtedly, why at la ft it was thought fit to 
annull the Proceedings of that Parliament of Henry VI, 
was out of a prudent Regard to the Uncertainty of Hu- 
mane Affairs, of which that Age was abundantly con- 
vinced. Another Revolution might happen, when the 
Friends to the Lancafirian Family would have it in their 
Power to revenge themfelves upon their Enemies ; and 
then thofe Ads of Attainder.^ which had not been re- 
verfed, might be put in Execution : And befides, Hen- 
ry VI, in this laft Parliament, had again entail'd the 
Succeflion of the Crown upon his own Iflue ; and 
(which might be judged a Matter of no fmall Concern) 
upon the Failure of it, had fettled it upon t\\t(g) Duke (g) ibid. 
oi Clarence and his Children. Now confidering the Tem- 
per of that (/j) Duke, and the Mutability of thofe Times, {h) He did 
it might be thought dangerous to fufFer that A6t (tho' '*'*'^''^- 
made in a pretenjed Parliament.^ unlawfully and by ufurped 
Power fummond by that Rebel and Enemy to King Ed- 
ward IV, Henry VI, late in Deed and not of Right King 
of England) to continue unrepealed. I make ufe of that 
Word, becaufe I think I may do it without any Prejudice 
to my Opinion ; for though the Do6tor feems perfuaded, 
that whatever A6ts are repealed., muft needs be of Force 
till they are fo; I cannot allow this to be always true * 
of which 1 have juft now given an Inftance, in the 
A^s of Henry \\\ which were declared Null and Void 
in the Firft Parliament of Edward IV ; and yet in that 


144 5^"^^ Hereditary Right of the 

very Statute they are faid to be repealed too. It is true^ 
the AfSts of H^nry VI. are not declared Doid in this of Ed- 
ward W^ in exprefs Terms ; which Omiffion the Dodor 
thinks remarkable for his Purpofe ; but the Words made 
ufe of are certainly of equal Importance j for they are 
ordained and efiahlifhed to he uoid^ which undoubtedly is 
equivalent to declaring them fo. In a word, if the Laws 
made by Henry VI. before his Difpofifeffion, were not 
held of fufficient Force and Authority, as I have proved 
by fome Inftances ; it muft be very ftrange, if thofe 
made by him upon his Recovery of the Crown, fhould 
be good and valid. Or, v/hich is much tlie fame thing, 
if EdwardV^ . co\i\A lawfully declare all the A6ts of Par- 
liament of H^nry VI. null and void, which were made 
by him the firft Thirty Nine Years of his Reign ; it 
would be ftrange if any fhould maintain, that his fubfe- 
quent Laws were of better Authority. 

I SHALL now proceed farther in my Enquiries into 
the Truth of the Dodor's Pofition, That none of the A&s 
of Parliament of the Three Henrys were confirrnd by Ed- 
(j) rtew, ward IV. The (i) Doftor confefles, that fome ABs of 
P-4P- Parliament relating to the Town o/^ Shrewsbury, and to the 
Founding fome Religious Houfes^ were confirmed by Ed w. IV ;« 
but then he fays, this was probably through Caution^ and di' 
the Dejire of thofe that were concerned in them : I readily a- 
gree with him in this Point; but the Queftion is, whe- 
ther this Caution was not neceflary ; and whether the 
Validity of thefe A6ts, for which this Confirmation was 
defired, might not have been controverted without it. 
Confirmations of this Nature do not ufe to be defired, or 
granted^ but upon real, not imaginary Occafions; and 
therefore if Conje6lures were to be admitted in this Cafe, 
they ought rather to be in Favour of the former, than 
the latter ; efpecially confidering the Intention of the Atl^ 
in which thefe Confirmations were made. The Preamble 
fays, it was to prevent Ambiguities^ Doubts^ and Diuerjities 
of Opinions about the Validity of ABs of Parliament ; and 
therefore the Doctor muft give me Leave to inferr, that 
this Confirmation was no unnecefTary thing. Befides, al- 
lowing this Caution to have been needlefs^ yet even this is 
an Argument againft the Doctor's Hypothefis ; for if the 
Legijlati'ue Authority of Kings de FaBo was an undeniable 
Part of the Conjiitution^ which had been always univer- 

CrdTon ^f England affefted, &c. 14?" 

fally acknowledged, and never dlfputed ; how camd 
Doubts to arife on a fudden, in Peoples Heads, about 
the Validity of the A6ls of the Three Henrys ? What 
Reafon was there, why any Subje6t (hould put himfelf to 
the Charge and Trouble of foliciting an A6t of Parlia- 
ment to fccure a Title, that had never been called in 
Queftion ? And this will be thought the more ftrange> 
when it is obferv'd, that tho' the Dodor calls thefe Ads 
which were confirmed , A^s of a Private Nature ; yet 
they were fuch, as Multitudes of Perfons were concern- 
ed in : All the Inhabitants of the Town of Shrewsbury^ 
and all thofe that derived any Benefit from the Reli- 
gious Houfes founded by the Houfe of Lancafier^ whofe 
Number could not be fmall and inconfiderable. Surely 
it would be very furprizing and unaccountable, to find 
People Jo much afraid^ where no Fear was, if it had not 
been a prevailing Opinion in thofe Times, that the Ads 
of Kings de FaBo needed Confirmation ; but fuch an Opi- 
nion could never have obtained fo powerful an Influence, 
had the Conflitution been fuch, as the Dodtor reprefents it* 
To all this let me add, that it was at the Defire, not on- 
ly of thofe that were immediately concern'd, that thefe 
Afts were confirmed ; but alfo of the Houfe of Commons 
too; for all A&s of Parliament^ in thofe Days, were in 
their firft Formations only Petitions of the Commons^ who 
could not be fuppofed capable of making that any Part 
of them, which never had a Precedent to countenance 
it ; and if the Dodor's Opinion be true, wanted even 
the leaft Appearance of Reafon to juftify and fupport 
it. To conclude therefore, (hould we allow it to be 
true, that thefe were the only Ads of the Three Henrys, 
that were confirmed by Edward IV; yet this Confirmation 
is a Proof, that thofe A&s were not tliought of fufficient 
Authority without it. And then I may ask the Dodor 
to give one Jingle Inflame out of all our Records^ of any A& of 
Parliament made by a Rightful King^ that ever was confirmed 
for Want of fufficient Authority. This Quefi:ion was put 
to the Dodor with great Ajjurance^ as he is pleas'd to fay ; 
but I am perfuaded, with as much Judgment : And it 
is worth while to obferve, how the ('y^) Dodor anfwers (ht>efence, 
-it. The ABs (fays he) of the I ith 0/ Charles II. were con- ^- 7°- 
firmed in the i:^th of CIutIqs II; anithis^ he tells us, han 
Injiance for him^ and a famous one. Well 1 if the Dodor 

P p Only 

146 The Hereditary Right of the 

only may fpeak with Affmame^ who can help it ? But I 
hope, without Breach of Modefty, we may ask what 
he meant by this Anlwer ; and how it was to his Pur-' 
pofe. The Queftion was, Whether A£ts made in a 
Legal Parliament by a Rightful King, were ever cou' 
firrnd^ by Reafon of a Defeat of that King's Authority : 
The Dodor fays. Yes ; becaufe King Charles II. confirm d 
the Ads made in the Conz'ention ; this is wonderful : For 
the Doctor knows very well, that thofe Ads were not co/z- 
firm'dfov want of Authority in King Charlesl]^ when they 
were made ; but for want of Authority in that Cctwention^ 
or Parliament^ upon the account of its not being called by 
the King's Writ. The Doftor is too well acquainted 
with our Confiitution^ to be ignorant, that there are cer- 
tain Effential Forms to be obferved in the Summoning^ 
f Ele&ing^ and Confiituting Legal Parliaments^ by the Omif- 

fion of which their Proceedings will be queftionable at 
(/) 3P Hen. leaft, if not void ; and this may undoubtedly (I) happeo 
^' '^- ^' under Kings de Jure : But how is this applicable to the 
Cafe oi Henry VI, whofe Ads were confirmed only upon 
the Account of a Defed in his Authority, and not upon 
any Sufpicion of Irregularity in the Aflembing of his Par- 
liament ? Well, but the Dodor asks, how it came to 
pals, that there were no more Ads of Parliament of the 
Three Henrys confirm'd, if they were not of fufficient 
Force without it ? I anfwer ; That it is very probable, 
that many more were confirm'' d^ than thofe the Dodor 
mentions ; but that fime more were confirm^d^ is certain 
and undeniable. 

Hr/?, I fay, it Is very probable, that many more were 
confirm d^ than thofe mentioned by the Dodor. For 
when Richard Duke of Tork laid Claim to the Crown, he 
granted and agreed, that all other ASis and Ordinanqes of 
Parliament (beiides thofe that concern'd the Inheritance 
Cru) Rot. of the Crown) (m) Jhould be good and fufficient againfi all 
?n'?;^^" ofW Perfons : This Conceffion prevented many Incon- 
veniencies of a Change. And Edward \Sf. was obliged 
by the Intereft of his Government, and by this Precedent 
by his Father, the firft Claimer, to approve of the Con- 
ceffion. Befides, the lame Concern for the Publick Good 
and Welfare, which prevailed with King Edward to con- 
firm the Judicial Acis^ Sec. of the Three Henrys^ done out 
of Parliament, would necefTarily oblige him to do as much 



Crcim of England ajferted, &g. i^-^ 

for many of theic ABs of Parliament^ which manifeftly 
provided for the general Benefit and Advantage of his 
People. It is true, the Act which confirms the Judicial 
Proceedings fS^c. of thofe Princes, feems plainly to (n) ex- («) Stat. 
cept their A&s of Parliament from that Confirmation ; but l^njl'^i'iJ 
even that Exception overthrows the Dodor's Affertion; ^ohmaddd 
for if it was a certain and unqueftionable Trutli, (as he Zirt!"Zc!^ 
■would make us believe) that thofe A&:s wanted no Con- f^'^f i^"" 
prmation ; it was impertment to tell the World, it was oUnyPar- 
not intended them : And it is not cafy to conceive, fuch ^'f"'"^ ^"^'^ 
lan Inftance can be produced oi A&:s of Parliament^ mQ thdrTima.j 
Authority of which was indifputable, that were par- 
ticularly excepted out of an A&: of Confirmation for no 
other Reafon, but only becaufe they did not need any. 
It is very probable therefore, that King Edward took care 
to intimate his Pleafure, that all thofe Acis of his de Fa- 
cia Predecefifors, which were thought of publick life and 
Service, fhould ftill be put in Execution, notwithftand- 
ing we do not meet with any exprefs A6t of Parliament, 
by which they were purpofely and formally confirmed ; 
and the true Reafon, why only thofe particular Ads^ 
which concern'd the Foundation of Religiom Houfes^ and 
the Town of Shrewsbury^ were mentioned, feems to have: 
been, rather to fecure them from the AB of Refumption^ 
which had pafTed juft before in this Seffion of Parlia- 
ment, than to fupply the Defe6t of Authority in the 
Kings of the Houfe of Lancaffer : For by this A& of Re- 
Jiimption^ all Lands^ Rights^ and Powers^ being reftored to 
the Crown, which had been granted away by the Three 
Henrys ; the very Sites of Religious Houfes founded by 
them were refumable, without a particular Exception ; 
and upon the fame Account the Town of Shrewsbury 
flood in need of particular Favour, for the Prefervation 
of thofe Privileges, which had been conferr'd upon it 
by the Bounty of thofe Kings. 

But, Secondly^ It is ceTt^'m fame other A&s of Parlia- 
ment of thofe Princes of the Houfe o^LancaJier^ were con- 
firmed by Edward 1 V^, befides thofe mentioned by the Do- 
(5tor : As an {o) AH for the Cloathing^ &c. of the Judges^ (o) Rot.Pari. 
(p) and the Letters Patent of Henry VI. to Jacquette of ji^'itiJ; 
IjiTemburgh^ Duchefs of Bedford^ granted in Parliament^ are 
alfo confirm d. All Commiffions of Sewers^ for which they 
had the Authority of A6ts of Parliament made by Hen- 

148 The Hereditary Right of the 

fy VI, are likevvife declared (q) Good ; which plainly 
fhe wed, that thofe Atls were not held of fufficient Force, 
to warrant the Proceedings of the Commiffioners. And 
Lajily^ feveral A^s of Parliament made by Henry VI. 
againft the Breakers of Leagues^ &c. with Foreign Princes, 
are Cr) ex preflycow/r/wV; but at the fame time it is de- 
clared, that the faid Confirmation (hall not extend to the 
fecond of Henry V, Vi ; which atFords us another remark- 
able Inftance of an At\ of Parliament made by a King 
deFa&o^ which became void by the King de Jure's bare 
Refufal to confirm it. I doubt not however, but it will 
be ftill ask'd, Why don't we find more A6ts of Parlia- 
ment of the Three Henrys confirm'd, if it was neceflary ? 
How comes it to pafs, that fo many of their Laws have 
been executed ever fince their Reigns, without any Ap- 
pearance of a Ratification from their Lawful Succefifor ? 
If they did not receive their Authority from the Makers 
of them, from whence did they derive it ? Now, if this 
Objection fignifies any thing, it will prove as well, that 
Laws may be made without Bifhops, without a Houfe 
of Commons, without the Concurrence of the Three E- 
ftates^ and even of the King himfelf ; for Inftances may 
be eafily given of ASs ani Ordinances^ which have had the 
Force of Laws in England^ which were defective upon 
one or other of thofe Accounts. Thus Mr. Frynn (s) tells 
us, That feveral AHs are printed in the Statute Book^ as AQs 
of Parliament^ which had no Authority. And my Lord 
(t) EUefmcre has mentioned feveral Proclamations.^ which 
had the Force of Laws. It has likewife been («) acknow- 
ledge, that many Conjiitutions.^ which were originally 
enacted by a Foreign Authority.^ (as fome Papal and Legan- 
tine Conftitutions) are binding in England., by Virtue of the 
Royal Suferance^ and the free Confent of the People ; yet 
furely it does not from thence follow, that the Pope had 
any Authority to impofe them. But this will appear 
more evident by the following Obfervations. (z) A 
Learned Author has affured us, that fome Ordinances of 

(q) 1 Edw. 4. I. (x) Przfat. D- Gale ad i<; Scriptores. 

(r) 14 Edw. 4. 4, Mirum diftu, Simon Montfortius leges 

0) Vv^nn' sPrej. to his Rigifieroj Pdrl. aliquot rogavit ; Henrixrus tertrus peffi- 

fVrits in the Beginning. mis ufus conliliis non affenfit, inde bel- 

(f) In his Speech about the Poft Nati. lum civile & piofcriptiones. Et tamen, 

(«) 25 Heji. 8. c. 21. quis creJeret ? Illis iplis Momfortii ne- 

tarii placitis obfequium perfolvimus. 



Cronxin ^/England affertedy &c. \^k) 

Simon Mont fort had as much the Fdrce of t.aWs^ as if they 
had been made by King Henry III. And tho' it is ah 
eftabhlli'd Truth, that the A/Tent of the Cofnhioris i^ ab- 
fclutely DecefTary in making Lavvs, and withi?ut it hb- 
thing can deferve the ISiarae of an Aft of Parliamefll:'; 
yet my Lord Chief Juftice (jy) Coke aflures uSj That tlife 
5th of Richard II. concerning Herefy, tho' protefted i- 
gainft by the Commons, was piit in execution, and con- 
tinued to be obferved as a Law, till it was repealed by 
Edrcard VI. (z) and Queen Elizabeth. The fame thing 
is (a) affirmed by Mr. Fox., of the a^ of Hetiry IV. c. 15. ; 

That the Commons never gave their Confent to it ; and 
my Lord Chief Juftice (b) Coke concurrs with him in his 
Opinion of this Statute, and likewife of the' ^^ o^ Hen- 
ry V. C. 7. The Force of which A&s was felt by the 
Subjects, till Henry VIII.'s and Edward VI. 's Reigns ; and 
afterwards in that of Queen Marj.^ till their final Repeal 
by Queen Elizabeth. 

I MAY now ask the Do6tor the fame Queftion he 
puts to his Adveriaries, fDe/entT, p. 62.) what fort of 
Laws thefe were. Will he fay they were Statute Laws ? 
That could not be, for they were not enadled in a Par^ 
Uamentary Way. Were they Common Laws ? That was 
alfo impoffible at the Time when they were firft put in 
execution. When he anfwers thefe Queftions, his Ad^ 
verfaries will be able to tell him, what fort of Lawsthofe 
of the Three Henrys were. Cufloms., he fays, {View., p. -j 4. .) 
are fometimes by A&s of Parliament turnd into Statute Law^ 
but Statutes can never be turn d into Common Laws or Cujiom. 
But therein he neither fpeaks Accurately, nor according 
to Truth : For, Pirji., Tho' Statutes are fometimes made 
in Affirmance of Common Law ; yet Common Law is not 
thereby turn'd into Statute ; for then it would ceafe to be 
Common Law. Secondly., It is not true, that Statutes can 
never be turn'd into Common Law ; for my Lord Chief 
Juftice Hale * has given it under his Hand, That many of 
tbofe things., that now obtain as Common Law., had their Ori- 
ginal Parliamentary AHs or Conjiitutions., made in Writing by 
the King., Lords., and Commons ; tho thofe A&s are now either 

« , 

Cy) 3<i Infi. c. Herefy ; and /^th Infl. (a) u4Bs and Mm. p. 586. in Hen. 5. 

ch. H. Cturt of Pari, and Sir Roger Twif- and p. 556. in Hen. 4.. 

den's Vind. of the Church of England. (b) ^th Infi, ch. i. cf the Parliamenti 

(x.) I Edw. 6. c 12. I Eliz. c. I. * Hifi. »f the Cammon Layv , ch.i. p. 3. 

Q q not 

1 50 7he Hereditary Right of the 

not extant^ or if extant^ were made before Time of MemO' 

I SHALL only beg Leave to mention one Inftance 
more of this Nature, which alone might be fufficient to 
(hew, that the Validity of Laws does not always depend 
upon the Authority of the firft Makers of them , or (that 
I may exprefs myfelf with the utmoft Clearnefs) that 
the Commands of Perfons not legally qualified to give 
them, may be obferv'd and obeyed, as equal in Authori' 
ty to the moft Sacred Laws of the Kingdom. 
CO w. (c) K I N G Richard II. being forced to yield to the 

?3r«/1!* Violence of the Times, ilTues out his Writs for a Parlia- 
Rmfter,8cc. ment to meet on the ^cth of September^ the 03d Year of 
WriZs!ti"^[ his Reign ; on which Day he refign'd up his Crown ; 
^ 44P.450, and the Duke of Lancafler took Pofleffion of it, by the 
Name of King Henry IV ; and thereby that Parliament 
was adlually Difoh'dy the very firft Day it met, as the 
(rf)Prynn, Parliament Roll of Henry [Y. declares (d) Henry IV. 
*'"**• being thus declared King, does upon that very 30th of 

September iffue out his Writs, in his own Name, for a 
new Parliament, to be held at Weflminfier on St. Faith 
the Virgin's Feftival, the 6th oWiiober then next follow* 
(e) Prj-nn, ing. (e) JVctr there being only Six Days Space between the 
ibid. Xefte ofthefe Writs^ and the Day of the Parliament^ it woa 

impojfibk to make any new Ele&ions of Knights^ Citizens^ and 
BurgeJfeSy throughout England, in fo Jhort a Space; upon 
which Account^ the Knights and Burgejfes fent to the Parlia- 
rnent fummond by King Richard, were continued^ and fort h^ 
with return d for thU^ a& if they bad been newly ele&ed^ by Vir- 
tue of this New Kings Writs. This is Mr. Prynns Ac- 
count of this Parliament, which I am perfuaded will be 
found true upon Examination ; and if we confider far- 
ther, that King Richard was a Prifoner at the Time, 
when he fign'd his Writs for a Parliament, at Chefter ; 
perhaps there never was a Convention^ which confifted 
of Members more illegally aflembled. For, F/V/?, Be- 
ing not ele&ed by their refpeiStive Counties and Bo- 
roughs, they could not poffibly be qualified to repre- 
fent them. And, Secondly^ King Richard being mani- 
feftly under a Force, when he iflued out his Writs, 
by which they were firft EleBed^ their Proceedings 
could never have a juft and legal Title to the Name 
of Laws, unlefs confirmed by that Prince, when re- 


Gromi of England afferted, &d i^f 

ftored to his full and entire Liberty. What fliall we fay 
then to the Laws enaiied by that Convention^ by which 
the Eleventh oi KichardW. was confirmed^ and that of 
the Twenty firft of his Reign repeaPd^ and many other 
A&s paffed, which have hitherto been put in Execution j 
and are held of Force at this Day ? Had they ever been 
declared good by a.fubfequent Parliament regularly 
afifembied, this would be a fufficient Vindication of 
their Authority ; but where is the ASi to be found ? It 
islrue, in the next Parliament, (f) Henry IV. confirms all cfMotPtii: 
the good Laws made by himfelf and his Progenitors ; but this ^ ^^"- 4- 3- 
Confirmation could not be of Force enough, to authorize 
any Afis^ which were not good Laws before their Confirm 
mation ; for by the Rules of Common Law^ the Confirmation, 
of a void thing is alfo mid : Upon which account (g) Sy- c^) Syder- 
derfin tells us, That it was made a Queftion among the J"/^ ^^Kt^ 
Learned, whel^her the Ads of the Convention (A. D. i. 
1660.) were good, notwithftanding the Confirmation in 
the 14. Car. II. I confefs indeed, I fee no Gfound for 
any Doubt in this laft Cafe ; for the Aft of Confirmation 
duly confider'd, clearly obviates all poffibie Queftions^ 
and particularly that which he ftates, of which it is ' 
plain the Parliament was aware. For it is obfervable,' 
F/V/?, They are careful not to call it a Parliament, but 
only the Lords and Commons aflembled ; and the A&s^ 
only A&s of the Lords and Commons, confented to by 
the King. Secondly^ They declare, the Aflembling and 
Ading in that Manner, is not to be drawn into Ex- 
ample. Thirdly^ They not only ratify and confirm^ but 
enaB and declare the A6ts there mention'd to have the 
Force of Laws^ as if made in that Parliament ; whereby all 
imaginable Doubts and Queftions were effedually pre- 
vented, and the Authority of thofe Ads of the Convert* 
tion beyond Contradidtion eftablilh'd and fecur'd. But 
nothing of this Nature was done by Henry IV. in his 
fubfequent Parliaments ; neither does any thing appear 
upon Record fufficient to determine any Controverfy, 
that Ihould arife concerning the Validity of the A^s of 
(what is calfd) his Firfi Parliament. From all which In- 
ftances it is abundantly manifeft, that the Ads and Or- 
ders of Princes and Aflemblies, which had no Legi/lative 
Capacity, may be obferved as Laws, though they never 
had any due Confirmation ; and then it is alfo evident, 


I ^^2.- The Hereditary Right of the 

that the Dodor has not proved his Point ; fuppofing it 
to be true, that the ABs of the Three Henrys were alwayt 
executed as good Laws, tho nemr confirrnd ; for it will not 
from thence follow, that their Authority was good and 

T H u s 1 have at large laid down the Reafons, why I 
qannot admit of the Legi/Iative Authority of the Three 
Henrys 'y and particularly fuggefted ibme Difficulties, 
which will not fuffer me to allow the Execution of their 
Ads of Parliament to be a good Argument for their 
original Validity. In a word, I have ofFer'd fome 
Proofs, in my Opinion, of Weight enough, to fatisfy an 
unprejudiced Reader, that the Ads of Parliament made 
by the Houfe of Lancafier^ were not in themfelves of 
fufficient Force and Authority to oblige King Edw. IV ; 
an^ this I imagine is all, that is needful for my Purpofe. 
For It is a Dodlrine laid down by my Lord Chief Ju- 
C^) CalviiiV ftice Coke^ (h) that Kings that fucceed by Hereditary Defcent^ 
■''' are bound by the A&s of their Predeceffors ; but then they 

muft be fuppofed to be Lawful Predeceffors ; becaufe no 
qther Reafon can poffibly be affign'd, why this Rule did 
noitf take place in the*Caleof Edward IV ^ but only the 
Defe6t of Title in the Princes of the Houfe o^Lamafier. 
From whence we may obferve this remarkable Diftin- 
dion between a King di Fa&o, and a King de Jure ; viz. 
That the Ads of Kings de Jure do bind their Succeflbrs^ 
but thofe of Kings de Fa&o do not bind Kings de Jure ; 
which overthrows efFedually (if I may have Leave to 
fpeak with Aflurance) all the Dodor's Reafonings from 
the A&s of Parliament of the Three Henrys. When I 
fay, that Edward IV. was not bound by the Laws of the 
Kings de Fa&o his Predeceffors, 1 would not be fuppofed 
to mean, that they were all abfolutely wid at his Acqui- 
fition of the Crown : For then it would be hard to con- 
ceive, how any of them could be capable of a Confirma'- 
tion^ according to the Maxim above-mention'd. That the 
Confirmation of a wid thing is itfelf mid: And the Truth 
is, to be wii, being the fame Thing as to have no Ex- 
iftence ; it cannot be pretended, that a Confirmation gives 
a Being to that, which had none before; but only fup- 
plies thofe Defeds of Strength and Authority, which it 
wanted. If I may therefore prefume to fpeak freely on 
a Subjed, which I am by no means qualified to be confi- 

t dent 

Croijon ^f England aprted, &d; I^J 

dentin, I would diftinguifh between the ABs ofParlk^ 
merit of thefe Three Kings of the Houfe of Lan- 
cafter; fome whereof I would venture to fay, were 
only 'voidable by King Edward IV, and the reft adually 
void upon his Accejfion to the Crown. Firfi^ I am of Opi- 
nion, that fome (and thofe the much greater Part j of 
the A(Ss of the Three Henrjs^ were only widable by 
King Edward W^ and not actually wid at his Entrance 
upon the Throne ; fuch I conceive were all thofe J&s of 
Parliament^ which did not in the leaft prejudice the Right 
and Intereft of the King de Jure ; and were alfo condu- 
cive to the general Good of the Subjed, and the Peace 
and Happinefs of the Government : That thefe were not 
adually void in the Beginning of King Edward's Reign, 
I am very willing to allow ; but then they depended 
entirely upon the Good-Will and Pleafure of Edward IV, 
whether their Authority (hould be fully eftablifli'd, or 
utterly rejetfted : In order to which a (i) Declaratory Aff 
was manifeftly requifite, for the Quiet of the Subjed, 
and the more orderly Proceedings in the Courts of Ju- 
ftke; without which they muft have remained in the 
fame precarious Condition, during his whole Reign. 
This I am perfuaded is a rational Account of King Ed- 
vpard\ Conduct, with refped to the Laws of his Three 
Predeceflbrs ; for though they were good againft the 
Subject, who had already given his Confent to them ; 
yet they could not bind the King againft his Will and 
Approbation, which he might give, or refufe at his owii 
proper Time ; and therefore, as I have before obferved, 
though he confirmed fome, and rejedted others, yet we 
meet with an Inftance of one, which feem'd to retain 
fome Authority, till the Fourteenth Year of his Reign ; 
which clearly proves, that all that while their Obligation 
was not fix'd and determin'd ; as not being completely 
valid without a Confirmation^ nor void without a Declara- 
tory A&. So that thefe Ads of Parliament of the Three 
Henrys^ remaining ftill upon Record, were executed by, 
the Courts of Juftice, and Officers of the Kingdom, 
without any Oppoiition or Interruption from the King; 

(i) It was agreed {in CalvinV Cafe) that Chri/tians, the Lscpes of thofe Countrys vitt 
though Conqiurori are not bound by tht remain in Force, without a Declaration 

R r and 

iBOugo ijunqntrsrs are not Dounn oy irx remain in rm 
La»i of the Conntry, vehich they conquer j to tht contrary. 
ytt in ail Conqntjis of Chrijlians againft 

I ^4 The Hereditary Right of the 

and therefore were of Force only by his PermiJ/ion^ noC 
by the Authority of the Kings of the Houfe of Lanca^ 
fier. In a word, as it is {k) declared by Ad of Parlia- 
ment, that though the Pope had no Authority of im- 
pofe his Decrees upon this Kingdom, yet many of them, 
for a long while, obtained the Force of Laws by Royal 
Suferance^ and the free Confent of the Subje&s ; the fame 
thing may be faid of the Laws of the Three Henrys t 
They were of no Authority by Virtue of any Legi/latwe 
Capacity in the Makers of them ; but being of Publick 
Ufe and Service, by the Sufferance of Edward IV, and 
his Succeflbrs, and the Approbation of the People, they 
have been conftantly received and executed, as if they 
were made by Princes of an undoubted Title. And for 
a farther Proof, that this is no lingular and unwarranta- 
ble Opinion, which I have here advanced, the following 
Inftance will deferve the Reader's Perufal. King Hen- 
ry VIII. having great Occafion for Money, which he was 
afliamed to ask for in Parliament, (their late Bounty to 
him having more than anfwered all his juft Expectations) 
appoints Commiffioners to corie(fl a (/) Bemmleme through- 
out his Kingdom : Now this being diredly contrary to 
an A6t of Parliament, made by {m) Richard III. that Sta- 
tute was objed:ed by one of the City Lawyers, againft 
any farther Proceedings in that Colledion ; but it was 
anfwer'd immediately by the King's Counfel, (n) That 
Laws made by VJltrpers oblige not Legitimate Princes. That 
Richard III. was not only a Tyrant, but a Murderer of his 
own Nephews., &c. That Henry VIII. being the True and 
Undoubted Heir of the Crown., could be tied thereby no far- 
ther., than it pleafed himfeJf; it being abfurd to think., that a 
Statute invented by a fa&ious Affembly., and approved no other- 
wife., than by a Criminal in the highefi Degree^ Jhould bind 
an Abfolute and Lawful Monarch ; wherefore if they had no 
better Evajion., it was not fit to maintain this. Such was 
the Opinion in that Reign of the Laws of Kings de 

(i) 25 Hen. 8. 21. Jewels, Utenfils, and Land, and accor- 

' (l) Lord Hevbms Life of Hen.S. An- ding to the extremeft Rate revealed by 

no 1525. See alfo Sir Robert Cotton'/ Oath of the Poffeffors. Notwithftand- 

Pofthuma. Of the manner how Kings ing there is a Law, i Richard. 3, that 

have fupported themfelves, pag. 177. none fhall be denied, in Demand of any 

■xhere rte meet with the folloiring Ptjfage : Loan, his reafonable Excufe. 

In the Time o£ Hen. 8. ^mio 14. of his (r/t) i Rich. 3, 2 

Reign, he exafteth by way of Loan, {n) Lord Herbert, ibid. 

7 en Found in the Hundred of aJl Goods, 

Fa&o • 

, Cromt of England afferted, &C. \^^ 

VaBo ; and the Confequence of it was, that the King 
proceeded in colleding the Benevolence^ without any Re- 
gard to Richard III.'s Statute. This Piece of Hiftory I 
am perfuaded is very pertinent to my Purpofe, and a 
clear Proof, that I have very good Authority for my 
Opinion, that the Laws of Kings de Fa&o do not bind 
Kings de Jure^ and are only of Force by their Permiffion 
and Sufferance ; and thus I leave it to the Doctor's Confi- 
deration. To conclude therefore, the Diftindion be> 
tween a King de Fa&Oj and a King de Jure^ is hereby fuf- 
ficiently evident, that the latter can declare the other's 
A£ts null and void, at his Pleafure ; but the former has 
no manner of Authority over the A6ts of a King de Jure. 
And this is agreeable to the unanimous Opinion of all 
the Judges, which they delivered in a Queftion about 
the Grants of King Edward IV, (o) in which they affirm, 
that they are all good without any Confirmation^ which cannot 
be fa id reciprocally of the A£ts of Kings (/e Fa&o. 

But, Secondly^ Though many of the A<5ts of Parlia- 
ment of the Three Henrys^ may very reafonably be al- 
lowed to be only z'oidabk by the King de Jure; yet there 
were fome of a different Nature, which were undoubt- 
edly 'void upon King Edward*s Acceffion to the Crown ; 
and fuch were all thofe, which were made againft the 
Title, Perfon^ and Interefi of that King^ and his Family. The 
Dodor allows it to be true, that the bare Pojfejfion of 
the Crown voids all Attainders ; and certainly the Reafon 
is the fame for the Nullity of all other AEis againft the 
Right and Dignity of the True Heir, when he has gain^ 
ed his Inheritance ; and therefore I fhall prefume to fay, 
that thofe ABs of the Houfe of Lancafler^ which limited 
the Succeffion of the Crown to their own Family, would 
have been of no Validity, though Edward IV. had never 
annulled them by the Authority of Parliament. If it 
fhould be asked, why then they were declared void^ if 
they were void without fuch a Declaration ; I anfwer, 
That Princes have always thought this neceffary, for the 
greater Security of themfelves and Adherents, left ano- 

(o) Tear-Boob, i Rich. 3. 3. Term. jufmodi, ou Annuite grant k terme de> 

Mich- Nota. Tenuz per touts les ju- vie, ]e grant eft bon fans afcun confir- 

ftices, que touts les Grants fait per Ed- naation ; autre eft des Offices Judic"", 

ward le 4. a afcun hommc d'afcun Office, car ceux font voydes, &c, 
jaignt judic"* , comme Paikerlhip & hu- 


1^6 The Hereditary Right of the 

ther Revolution (hould put their Enemies again in Pof- 
feffion of the Throne ; and then all the AEis made by 
them, which had not been vacated, would appear in 
Judgment againft them, to their utter Ruin and Deftru- 

Thus, in the Cafe of Hmry Vll, though the Judges 
had given their Opinion, that the Crown took avpoy all Stops 
(P) Lm-dBa.- and DefeSis of Bloody yet that (p) Prince took Care to have 
Hen. 7. Engl, ff ordaind in Parliament^ that all Records^ wherein there was 
Edit. Fd. p. ^^y Memory or Mention of his Attainder^ Jhould he defaced^ 
cancelled^ and taken off the File. Thus Edward I V. voided 
all thofe Laws, that had been made to the Vijherifon of 
the Houfe of Tork', and Henry VI, upon his Recovery of 
the Crown, annull'd thofe of Edward IV. againft his 
Title. And laftly, in the like manner did EdwardlV^ 
fome Time after his Reftauration, treat the whole Parlia- 
ment of Henry VI. But from thefe Inftances it cannot 
fairly be inferred, that thofe Princes thought thefe A&s 
had Authority, without fuch an Annullation ; for we 
find, that fometimes the Acts of the moft impudent Re- 
bels, and vileft Ufurpers, have had the Honour of being 
declared void in Parliament, though no body doubted of 
their being fo without fuch a Declaration. Thus the 
ABs of John Cade, a mojt abominable Tyran.^ horrible^ odi^ 
ouSy and errant fals Traytour.^ and all Enditement^ and aU 
things depending thereof bad and made under the Power of 
iq) 31 H. 6. his Tyranny and Rebellion^ are (q) declared of no Record.^ nor 
(r/laCar.a. £^^1 ^^^ '^^^"^ ^"^ Law. And all (r) Attainders by Oliver 
j^- ^ and the fucceeding ujurped Powers^ and (s) all Orders^ Crdi" 
I. ' ' nances of both Houfes.^ or either Houfe of Parliament.^ for im- 

fojing Oaths .^ Covenant s.^ or Engagements.^ levying ofTazes.^ Sec. 
are declared void ; though in the fame A& it is faid, They 
were all null and void in their firji Creation, and Making. 

I HAVE now examined every thing, which appear'd 
to me confiderable in the Dodor's Plea for the Legijlative 
Power of the Three Henrys ; and if I do not judge too 
indulgently of my Performance, have ftiew'd it to be 
defeftive in the feveral Points, which were moft iniifted 
on. At the fame Time I imagine, I have made it evi- 
dent, that the Example of Edward IV. is a clear Proof of 
the true Authority of Kings ^/e Jar^, in Oppofition to 
the pretended Authority of Kings de Fa&o. 


Cfoivn of England ajirerted,&cc. 1^7 

I N the next place the Doctor urges the Laws of Ri- 
chard III. as a good Argument for his Legiflative Capaci' 
ty ; and feveral Pages are fpent, to convince us, that all 
his Ads of Parliament have been conftantly executed, as 
equal to thofe of the moft undoubted Authority ; ex- 
cepting only fuch,as were repealed by Hemj VII; for that 
King {fays (t) he ) did not pretend to declare any of them Co ^or, . 
Toid ; which he certainly roould have done^ if the ConfiitU' ^' ^'^' 
tion would have borne it^ fificefome of the A&s oj Richard III. 
were of that odious and detejiable Nature^ and his Perfon fo 
juftly abhorred, that it was doing him too much Honour to re- 
peal thofe ABs^ if they could have been Jet ajide for Want of 
Authority in the Maker of them. To this purpofe does the 
Do6tor argue : And I very readily agree with him ; I 
allow it to be true in Fa(^, that Henry VII. did not de- 
clare any Law of Richard III. void ; and I am entirely of 
his Opinion, that the Confiitution would not bear it ; nay I 
^m willing to grant, that this was a good Proof of the 
Legijlative Authority of Richard HI, with rcfpedt to Hen- 
ry VII; and fully demonftrated, that the Laws of the 
former did bind the latter. But then I muft beg Leave to 
diflent from the Do6tor, when he inferrs from it in ge- 
neral, that the Laws of Kings de Fa&o are, in their own 
Mature, and without any Exception, good and valid. 
For, had Henry VII. as true an Hereditary Right^ as he 
pretended, we fhould have met with a much different 
Account of his Proceedings on Record, from What we 
now find ; but being himfelf in Reality no other than 
a King de Fa&o^ it was impoffible for him to adt other- 
wife, than he did. How could he declare the ABs of 
his Predeceflbr void^ upon the Account of his being an 
VJiiTper^ when he knew, he was no better himlelf ? 
Could his Laws be efteemed of greater Authority than 
Richard Ill.'s ? And what a happy Difcovery would it 
have been to his Subjedls, to acquaint them, that what- 
ever Laws he impofed upon them, they could riot oblige 
his Succeflbr ; and confequently would have but a pre- 
carious Exiftence after his Demife ? So that Richard III, 
confidered with regard to Henry VII, was a King de Jure ; 
ais every King de Fa^o is to his Succeflbr, who has no 
better Title; for whatever Laws are made by the one, 
will bind the other : And this undoubtedly is the true 
Reafon, why Henry VII. repealed thofe Laws of Ri^ 

S f chard 

198 The Hereditary Right of the 

thardWl. which he had a mind to get rid of; it being othef' 
wife impoffible to deftroy their Authority. And nothing 
can be a more remarkable Proof for this Purpofe, than 
an Inftance, which, the Dodor fancied, did very much 
favour his Hypothejis ; and that is in the Cafe of thofe, 
who had been attainted by Richard III ; who were not 
permitted to fit in Parliament, till their Attainders were 
reverfed by a particular A^ for that purpofe * but had 
Henr^ VII. been King de Jur/^ he would not have been 
obliged to thofe Formalities ; for it may be remembred, 
what I before obferved, that Edward IV. did not reverfe 
thofe A&s of Attaindtr made by Henry VI. againft his Ad- 
C«) Edward hereuts, till above feven (11) Years after his Reftauration ; 
Pcjfefm'a- J" which Space of Time he had held feveral Parliaments, 
gain m the wherein thofe Lords and Gentlemen muft have fat, before 
iiiR(^n%d the Reverfal of their Attainders ; unlefs the Defter can 
^tv^fj''the ^™^g^"^i ^° gxQd.t a Is[umber of Perfons, remarkable as 
Attaindirs well fot their Quality and Fortunes, as for their Fidelity 
lifiillfjfL ^° ^^^^^ Prince, were all that while incapacitated to fit 
in Parliament. Thus it is evident, that the A^s of Ri- 
chard III. were only valid againft Henry Vll, who ha- 
ving no better Title than Richard^ could not pretend to 
declare them iioid^ without bringing all his own ASs in- 
to queftion. If it fhould be now asked, how thofe of 
Henry VII. continued. in Force, confidering that he was 
fucceeded by a Prince, that had an undoubted Right, not 
a bare King t/e Ffl^o ; the Anfwer is obvious; for this 
King of an undoubted Right was Henry VIII. his Son, 
who had too much Refpeft and Honour for his Father, 
to fet a publick Mark on him as an Ufurper, by annull- 
ing his A&s ; and for this Reafon it is, that the Aiis of 
Richard HI, as well as thofe of Henry VII, have always 
continued in Force ; becaufe Henry VIII, who had Au- 
thority enough to vacate . them, and did vacate the A3 
againft Loans^ yet thought fit to permit them to be exe- 
cuted during his Reign ; efpecially confidering, there was 
nothing in them to the real Prejudice of the Crown ; but 
on the contrary, they were generally of great life and 
Service in promoting the Intereft of his Government ; 
and having been thus put in Execution through Henry 
VlII.'s Reign, none of his Succefl'ors would afterwards 
give themfelves the Trouble of calling their Authority in 
queftion. This I take to be a reafonable and true Ac- 

Cro'd^n of England afferted, &:c. i^'p 

count of the prefent Validity of thofe ABs ; and no other^ 
1 believe, can poflibly be given, which is confiftent with 
the Power exercifed by Edward IV, and Henry VIII, 
which belongs as well to every King de Jure^ as it did 
to them. 

W H E N I call Henry VII. King de FaBo^ I therein ra- 
ther comply with the Humour and Inclinations of that 
Prince, than my own real Sentiments : For (z) from 
the Time of his Marriage with the Heirefs of the Houfe 
of Tork^ he undoubtedly became King de Jure ; and even 
before that Time^ from the very Entrance of his Reign, 
he may be lookM upon as having a Prefumptive Right to 
the Allegiance of the People of England, as he had ob- 
liged himfelf by an early Promife to marry that Princefsj 
and the whole Nation was perfuaded he would not fail 
to perform it. For (j ) before he invaded King Richard^ 
he had pafled his Word, that he would make that Prin- 
cefs his Wife ; which gave the greateft Encouragement to 
the Nobility, who confidered the true Intereft of their 
Country, when they afTifted him in that great Enter- 
prize : And in his firft Parliament, the Commons did not 
forget to Addrefs him to the fame Purpofe ; and (z) the 
Lords Spiritual and Temporal^ rijing from their Seats^ and 
ftanding before the King^ as he fat upon his Royal Throne^ 
with their Heads bowed, in a low Voice humbly ReqUefiedhim, 
to make the Lady Elizabeth hU Queen. To whom he 
{a) anfwer'd, with hU own Mouth, That he was content to 
proceed according to their Vejires and Requefis. So that the 
People of England, from the firft Commencement of his 
Reign, had reafon to confider him as the Husband of the 
Ri^t Heir to the Crown ; and upon that Account their 
Obedience and Fidelity to him will admit of a fair Ex- 
cufe and Juftification. But Henry VII. efteem'd it a Di- 
minution to him, to owe his Title to his Lady ; and there- 
fore, as if he was afraid of nothing fo much, as being 
thought a Lawful Prince, he chofe to found his Claim oti 
his own Hereditary Right, his Vidtory, and the Pope's 
Confirmation ; which were utterly incapable of affording 
him any real Support and Defence. His Hereditary 

(x) jirchhijhop VzAtr Jpealing of the vita ]. Morton, p. 297. Edit, Ha- 

PopeV Bull, in which jtvtral Titles are he- nov. 

jiomd. on Henry VII. aids. Solum Jug (j) Lord Bacon'/ Life of Hen. VII. 

Divinum omifit, cujus etfi Ipfe expers p. 2. 

fuit, tamen illae Cffilitus datae nuptiae ca- Cz,J Rot. Pari, i Hen. 7. 

rere non potueiunt. Antiq. Kritan. in C''J Rot. Pari. ibid. 



il'^o The Hereditary Right of the 

Title has indeed been much talked of, and often taken 
for granted even by {b) Perfons of Note and Eminen- 
cy ; and therefore it may be worth while, to give that 
IMatter a thorough Examination. 

I T has been furmifed, that Henry Vll. had a Title to 
the Crown, as being defcended from 'John ofGaunt^ Duke 
of Lancafier ; and tho* it be true, that the Pretenfions of 
the Houfe of Lancafier were condemned as falfe and 
groundlefs in the firft Parliament of Edward IV ; yet it 
is urged, that (c) Henry VII. having repealed that Aft 
oi Edward V^ ^ by which Henry VI. his Queen and Son 
were attainted and difabled ; all the Judgments made a- 
gainft that Family were confequently annulled, and their 
Right revived. But thefe Aflertions will foon appear 
to be Miftakes. 

Firft ^ It is pretended, that Henry VII. had an Heredi- 
tary Title, as being defcended from John of Gaunt ; and 
the Truth is, we find it in the (d) Record of Parliament^ 
that the King [viz. Henry VII.] told the Commons with his 
own Mouthy that his Coming to the Crown was a& well by a 
Juft Title of Inheritance^ as by the True Judgment of 
God, f^c. and in one of the (e) printed Statutes it is 
f^id, his Coming into England was for the recovering and 
obtaining his Juft Title and Right to this his Realm of Eng- 
land. So that it feems his Right and Title commenced 
antecedently to his Pofleffion of the Crown, and before 
any of the Laws of Edward IV. which had let afide the 
Title of the Houfe of Lancafier ^ were repealed. But 
furely the Beaufort Family, from whence only he deri- 
ved his Defcent by his Mother, were the Illegitimate IJfue 
of John of Gaunt^ and Katharine Swinford^ being born be- 
fore Marriage, and confequently, by the Laws of Eng^ 
landy incapable of claiming any Rights by Inheritance. 
They were indeed afterwards legitimated by (/") A6t of 
Parliament ; and rendred capable of every thing, but the 
SucceJfiQn to the Crown ; from which they were excluded 

(i) My Lord Bacon himfelf has coun- 
temnced this Opinion in his Hiftory ; and 
the Bifhop of Sarum (Hift. Ref. Part i . B.) 
thinis, the only ObitUion ^ainji Hen- 
ry VII.V Title was his Mother's bang a- 
live, from whom he derived it. And 
T)i:, Higden has declared himfelf of the 
fame Sentiments, View, p. 66. And De- 
fence, p. 165^ 

(c) Rot. Pari, i Hen. 7. 

[i) Rot. Pari. 1 Hen. 7. D. Rex prx- 
fatis Communibus ore fuo proprio elo*- 
qaens, oftendit fuum Adventum ad Jus 
& Coronam Anglix fore tarn per juftum 
Tittdum HareditartHm, quam per verum 
Dei judicium, 8cc. 

(e) I Hen. 7. 6. 

(/) Rot. Pari, 3oRic.2. 


Crcnvn of England ajferted, &CC. i6t 

by exprefs Words in that Statute, as my Lord Chief Ju- 
ftice {g) Coke oblerves ; and therefore it is impoffible to (p See Ltri 
conceive, how Henry VII. could, with any Colour of ^of^./'J^'^' 
Tuftice, lay Claim to the Crown of England by De" inftitut. 

j: . ^ ^ ci.ef the 

But, Secondly^ It is pretended, that all thofe Ads of ^^'^' ^j^^* 
Edward IV. which deftroyed the Title of the Houfe of Appendix, 
Lancafier^ were repealed in the firft Year of Henry VII. ^- ** 
Thus Sir George Treby(h) fays, That In the Firji o/"Hen- ih)DthattM 
ry VII, there is an A& made, that fets afide aU the ABs and jtSSr/" 
Attainders made again ft his Line, and confequently repealed the Abdica* 
1 Edward IV, which repealed I Henry IV. And fo far *^°"' ^^'^'^' 
(i) Dr. Higden agrees with him, as to affirni'^ That Ed' (i) f^tof, 
ward IV.V Attainders of Henry VI. were reversed and an- ^* ^^' 
nui!d, and Henry VI.'j Title refiored by A& of Parliament^ 
in the firft Parliament of Henry Vll : And again, (k) Hen- i}) ^^» 
ry VII. in the firft Tear ofhU Reign, pafs'd an AB of Parlia* ^ ^ ' 
ment, wherein it is ena&ed, That all ABs of Attainder or Dif- 
ahlements againft the late King Henry VI. be mid, annulld^ 
and repealed. Sec. So that the Force of all the former Deck'- 
rations and A&s of Parliament againft Henry VI. w taken 
off by thl/s laft AB of Parliament, which reftores his Title* 
Now the Truth of this Matter will beft appear by a 
Sight of the hOt itfelf, which I fhall here fet down out 
of the Record, i Hen. 7. The King our Sovereign Lord 
remembring, how againft Righteoufnefs, Honour, Nature, and 
Duty, an inordinate, feditious, and JlanderOus AB was made 
againft the moft famous Prince of Blejfed Memory, King Hen- 
ry VI, hu Vncle, in Parliament, in the firft Tear of Ed- 
ward IV. late King 0/ England; Whereby his faid Vncle, 
contrary to dm Allegiance, and all due Order, was attainted of 
High Treafon. Wherefore our Sovereign Lord^ Sec. ordained, 
that the faid AB, and all ABs of Attainder, Forfeiture, and 
Difablement, made or had in the fame Parliament, be Voidy 
Annulled, and Repealed, and of no Force, or EffeB. From 
vhence it is evident, that by this Repeal only thofe par- 
ti:ular A(5ts, or rather Glaufes of Afts, were abrogated, 
wiereby the Heirs of (I) Henry Earl 0/ Derby were decla- (') Rot. Pari. 
red ever more unabled, and unworthy to have, joy, occupy, hold, '^" 
or inherit any Eftate, Dignite, Pre-eminence, Enheritements, or 
Poffeftions within the Realm 0/ England, ^c. All the other 
Judgments of Parliament, for the Title of Edward IV, 

T t and 

i6i The Mereditary Right of the 

and ggainft that of the Houle of Lancafter^ ftill remain- 
ing unrepealed, and in full Force. The utmoft there- 
fore, that can be collefted from this Statute of Henry Vll. 

v>.'^ !t>. is nomore than this; That thofe Incapacities, which 
"■ ' ^rofe from Corruption of Blood, and Forfeiture, were 
now removed from Henry VI. and his Heirs: But 
that was not fufficient to reftore his Title to the 
Crown; the (m) A&: of Farliament^ on which it de- 
ifcMii^cifi) p^je(^^ having been annull'd by EdrvardlV^ and never 
again revived. And indeed there was no imaginable 

2^ Reafon, why Henry VII. (hould attempt to reftore the 

Title of the Houfe of Lancafter ; lince it could not poffibly 

^'^'l^^^ help -him to any Pretence of Right, as I have already 

proved; and would be prejudicial to the Claim of the 

Houfe of Tor^, the firmeft Support of his Throne, upon 

'"''^ which only he could rely. 

But though Henry Vil. were no more than a King de 
Ta&o before his Marriage, I am willing to confider him 
under a much different Character afterwards, when he 
became the Husband of the undoubted Heir to the 
Crown. In which Cafe, though the Queen alone was 
Legally entitled to the Executive Power; yet the moft 
fcrupulous Subjeft had no Reafon to think her injur'd, 
.■when it was exercifed by her Husband ; on whom, it 
might very juftly be prefumed, (he had freely devolv'd all 
her Right, and Authority. In this refped therefore the 
Titleof Henry VII. could not well be difputed ; fince in 
Judging of the Rights of Princes, nothing more is ne- 
ceflary, than to be aflur'd, that Allegiance may be paid 
to them, without doing any Wrong to a third Perfon ; 
by which Rule the Authority of Henry V\l. became un- 
queftionable ; and without the leaft Doubt or Scruple, 
he might very honeftly be acknowledged as King de Jure 
So that frpm the Time of his Marriage, we are to lool 

(ni) The.EnUil ojjke. Gmn ntAie by Royal, Power, Eflate,. Dignite, Po- 

HenryA, (7 Hen. 4. 2.) on his ljfne, not eminence. Governance, Exercife, Pofff- 

declared null and void by Edward 4. (Rot. fions, and Lordfhips abovefaid, be vdd, 

Pari. 1 Edw. 4.) in the following Words : and be taken, holden, and reputed v»id. 

Be it ordained, declared, and eltablifli'd, and for nought, adnuUed, repealed, re- 

that all Statutes, Afts, and Ordinances voked, and of no Force, Value, o Ef- 

heretofore made, in arid. for the Hurtj feft. -Which yiii of AnnHlktion mtde bj 

DeftruiTtion, and Avoiding of the Right Edward 4, wat iffver repealed byHctir. 

and Title, of Kiijg Richard , or of his ry 7, 
Heirs, tQ.aak, claim, or have t;he Crown 


Crimh (^/England afferted, &:c. i&j 

•upon him as perfe(Sly endued with a Legiflative Capaci- 
^ty, which fecures all his iublequent Laws from the Ob- 
jection, to which thofe made in the Beginning of his 
Reign were liable.. w 

From thefe Obfervations and Remarks on the Ti- 
tle of Htnry VII, 1 proceed to the Confideration of that 
(n) Statute of his, which has been often cited, -as the 
iureft Support of the Authority of Kings de'Fa&o; and 
is ftill relied upon, as the fafeft Retreat, when all other 
Arguments fail : But if the (o) Authority of Kings de FaCto 
had been always acknowledged ; and the Allegiance^ which this 
Statute declares to be due to them, was e'ver paid in this Realm ; 
and both the one and the other jujiified by the Common and 
Statute Law of the Kingdom^ in the Reigns of Hereditary 
Kings ; why could not Henry VII. be contented with the 
Provifion already made for the Protection of his Adhe- 
rents ? What Occafion was there for a new Law to efta- 
bli(h a Privilege, which had been long a known Part of 
the Conftitution, and the Birth-right of every Englijh Sub- 
jed ? And it is apt to increafe one's Wonder, to fee my 
Lord Bacons Authority (p) alledged, to fhew the Wifi 
dom, Jufiice, and Magnanimity of this Statute ; for where 
was the Wiifdom, to do a Thing that was unneceflary ? 
The Jufiice, to give what no-body had Reafon to de- 
mand ? Or the Magnanimity, to defend thofe, who were 
in no manner of Danger? But it maybe, thefe are nice 
and frivolous Queftions; apd therefore 1 haften to a 
ftriCt Enquiry into the true Meaning of this Statute; 
and that certainly may be beft coUeded from the (^)Con*- 
dition and Circumftances of the Law-giver, and the End 
for which this Statute was intended. If we coniider the 
Condition and Circumftances of flenry VII, at the Ma- 
king of this Statute, it is plain, as I have already (hew- 
ed, he was a King de Jure, as well as de Ej<f?o; and the 
{r) Dodor, to do him Juftice, is very willing, it Ihould 

(») II Hen. 7. I. which the P/trliament meant to remedy: 

(0) Dr. Higden'x yiew, p. 64. He For, M it is ohferved in the Inftitutes, 

faySy This AB has lain under a great Pre- many Records of Parliament can hardly be 

judice, M if it introduced a new Authori- undirfiood, unlefs yon join thereunto the 

ty, and a new Allegiance, not knoxn be- Hifiory of the Times. See the Jurif- 

fore inottrConfiitution, &c. p. 64. diilion of Chancery vindicated, at the 

(p) Defence, p. 125. End of the Reports of Cafes in Chance- 

(^) // is a good Rule for theUndcrJland- ry, p. 70, 
ing of Statutes, to know what vftre the Mif- (rj V^iew, p. 65, 66. Defence^ p. f2g. 

toiefs And Grievances in the Kingdom , 


1 64 T^^ Hereditary Right of the 

be admitted, that he was fo. And indeed, vv'hoever 
impartially examines the Circumftances of thole Time?, 
will eafily be fatisfied, that it was impoffible for Hen- 
ry VII. to be invaded, or difpofiTefled of the Throne by 
any Perfon, that had fo good a Right as himfelf ; fo that 
he had no body to fear, but an unjuft Pretender ; and 
was only in Danger from thofe, that had no Legal 
Claim to the Crown : He had no Reafon therefore to be 
particularly concern'd for the Safety of his Friends, as a 
King de Fafio; for he knew, he was de Jure too^ with 
refpedt to any one, that fhould oppofe him ; and fure- 
ly (how equitable foever fuch an A6t might be in fome 
refpeds) he could never be moved to it from a juft, and 
wife Calculation of any real Advantage, that would aC' 
crue to him from it; but had Reafon rather to apprehend 
the contrary : For, confidering the Pofture of Affairs at 
that Time, that he was daily threatned with a powerful 
Invafion, which for ought he knew might fuccced ; he 
might eafily forefee, that his Enemies then would reap 
the greateft Benefit from this Aft : For had Henry VII. loft 
a Battle, and been driven from his Throne, the People 
would have been bound, by Virtue of this Ad, in the 
Senfe now put upon it, to have defended the llfurper 
againft him ; and could never have been punifhed for fo 
doing. Whatever therefore might have been the real 
Defign of this Law, it could not certainly be the prima- 
ry and chief Intention of it, to fupport the Thrones of 
ambitious Intruders, by what Means foever they fuc- 
ceeded in their bold and daring Enterprizes : Such a 
Law as this, was fo apparently dangerous to Henry VII, 
that it cannot well be imagined to have been ever in his 
Thoughts. And there is this farther Prejudice againft 
the Doctor's Opinion, that this Statute (if intended 
wholly for the Advantage of Kings de Fa&o) would have 
occafion'd the fevereft Cenfure imaginable upon Hen^ 
0)TheWords ry VII.'s Rcigu ; for if W it was againji all latp, Reafon^ 
II Hen. 7. 'i.'^"^ good Confcience^ that Subje&s going into Wars with Kings 
de Fafto, Jhould lofe or forfeit for doing this their Duty of 
Allegiance ; the Do&or will find it a very difficult Matter 
to difcover, upon what Principles of J uftice fo many Per- 
fons were attainted, for no other Reafon, but for being 
in the Service of Richard III. The Dodtor may eafily fa- 


Crovin of England ajerted, &CC. 1 6^ 

tisfy himfelf in this Matter from the (t) Rolls of Parlia- 
ment, where he will find (u) many Perfons of Note at^ 
tainted, purely for following the Fortune of that King, 
and affirting him in the Battle of Bofworth'Field ; and it 
deferves the Doctor's particular Reflexion, that at the 
very Time, when this Jufi arid Merciful Aft (for fo I 
find it is efteem'd ) was pafled, feveral of thofe Gentle* 
men continued (till under Attainder^ as appears from the 
Records of the i ith and lath Years of Henry V\\. It 
muft be confeffed, the Doftor has been pleas'd to take 
Notice of this Objedion ; but then he has given it fuch 
an Anfwer, as I have too much Refpeft for him> to call 
by its proper Name. It U objeSied (fays he) that thefi 
Princes fometimes attainted Jome of the headers of the Oppofite 
Party for adhering to their Rivals. But when they did thts^ 
their conftant Way of Proceeding againfi fitch Perjons^ was by 
Attainders in Parliament ex poft Fa6to, and not by IndiB- 
ments in the ordinary Courje of Proceedings ; which Jhews^t 
think, at the fame time^ that to firue the King in Poffejjion was 
not a Faulty nor could be punijhed as fuch by the Laws that 
were then in Force. Now, if I might do it without Impet- 
tinence, I would ask the Doftor the Meaning of Attain* 
ders in Parliament ez poji Fa^o; for furely none were 
heard of ante FaBum. Laws indeed have been fome> 
times made ex pofi FaBo^ whereby Actions have been fub-» 
je(fted to Punifhment, which were not Criminal when 
they were committed : But the Doctor knows very well^ 
this is not the prefent Cafe ; for it cannot be affirmed, 
that any new Laws were made in Edward I V.*s and Hen* 
ry VII.'s Reigns, which made People Traytors^ who 
might not have been condemn'd as fuch, by Laws before 
in Being. That many were judg'd guilty of Treafon, 
and attainted upon that Account in their Parliaments, is 
very certain ; but we are to prefume, thofe Proceedings 
were founded upon a Law already made : For my 
Lord Chief Juftice (:r) Coke tells us, That by Order of Law 

Q) The NamtJ of thofe attainted At that kington, Robert Middleton, James Har- 
Time nere thefe that foUom : John Dnie rington Knt. Walter Hopton, Willianl 
of Noifolk, Thomas Earl of Surrey^ Catesby, Roger Wake, William Sap- 
Francis Lovell, Walter Dex-creuX, Lord cott, Humphrey Staiford, William Clerk 
Ferrers, ]ohn Lord Zouche, Robert cf Wenlock, Jeffrey St. Germain, Ri- 
Harrington, Richard Charleton, Ri- chard Watkins, »»« /rt/Wd/ o/^^r/. 
chard Radcliffe, William BerklyO/ We- («) r>w, p. A7. 
ly, Robert Brackenbury, Thomas Pil- (x) Inft. 4. ch. i. p. 3?. 

U U a Man 

l66 The Hereditary Right of the 

a Man cannot he attainted of High'Treafon^ unkjs the Of^ 
fence be in Law High^Treafon ; and therefore he ought not to 
he attainted by general Words of High-Treafon^ by Authority 
of Parliament. He owns indeed, that this had fometinie*s 
been done ; but then he does not pretend to give any ch 
ther Inftances of it, befides the Cafe of Elizabeth Barton^ 
and Lord Cromwell^ in Henry VlII.'s Time. So that it 
were to be vvifh'd, the Do6tor had been lefs forward in af- 
firming, that the Attainders in Parliament were occafion'd-, 
for Want of Law to puniQi Perfons out of Parliament; 
for their Attainders fuppos'd them to be Criminal^ but 
did not make them fo ; and therefore they might have 
been tryed, and condemned in the Ordinary Courts of y«- 
Jiice^ had it been thought neceflary. The Truth is, it 
is a vain Imagination of the Doctor's, that the Reafon of 
Attainders in Parliament was, becaufe fuch Perfons could 
not be proceeded againft by Indi^S^ments ; the contrary 
being eafily demonftrated by Multitudes of Inftances, 
which would abundantly (hew, that the true Caufe°6f 
giving Judgment in thefe Cafes in Parliament, was ra- 
ther for the fake of Expedition, upon the Account of the 
Number of Criminals, and to prevent unnecefTary De- 
lays, efpecially when the Fa(fts, which w^ere the Rea- 
fonsof thofe Attainders, were Notorious; and therefore 
there was no occafion for thofe tedious Methods of Proof, 
-which are ufed in the iiiferiour Courts of Juftice. 

But I return now to Henry Vil.'s Statute, which 
.could not be intended purely for the Benefit of Kings 
de Fa&o^ for the Reafons I have now given ; but that 
the Safety and Intereft of that Prince's Friends and Adhe- 
rents were confulted by it, can never be doubted ; for by 
Virtue of it, they had been effedually protected, tho' 
Henry VII. had loft his Throne. And this 1 think will 
appear from the following Confidcrations, which will 
much contribute to the deciding our prefent Controvert 
fy. Firfl, That all Laws made by Kings de Jure bind 
their Succeflbrs. Secondly^ That Hmry VII. was King 
rjicfe Jure at the Time of making this Law; and could not 
'be difpoflefs'd of his Throne, but by a Perfon, who had 
lefs Right to it than himfelf : And Thirdly^ That when 
this A6t was pafled, Henry VII. was daily threatned with 
an Invafion from Ferkin Warbeck ; the Iflue of which, in ' 
regard to the Hatred, which was ftill borne him by the 


Cron})n 0/ England ajferted, &Cc, 1^7 

Friends to the Houfe of Tork^ could not but be doubt- 
ful and uncertain. Thefe things confider'd, it will cer- 
tainly be allowed, there was great occafion for fuch a 
Liw, as would etFeftually fecure his Adherents from the 
Danger of incurring a Forfeiture of their Lives, Eftates, 
and liberties, which, without luch^ Provifion, could not 
poffibly be fafe. For, as Henry Vll. had attainted thofe 
that fought for T^ic^arc/ 111 ; fo Perfdn^ if he had fucceed- 
ed, might have ufed thofe, that were in Arms for Hen- 
ry VII, in the fame manner; unlefs difabled by fome 
Legal Reftraint, fuch as this Statute was ; which provides 
amply for the Security of all thofe, that attended Heri" , 
ry Vil. in his Wars. In a word, as without fuch a Law 
the Party of Henr)/ VII. would, have been in great Dan- 
ger, had their Army been defeated ; fo by Virtue of it, 
they muft have been entirely fafe: Becaufe as Hen^ 
ry VII. and his Parliament would- not prefume to flight 
the Authority of the Laws of Richard III, but efteem'd 
them all good and obligatory ; upon the fame Princi- 
ples, whoever had forced Henry VII. from his Throne, 
and taken Pofleffion of it, muft have been obliged by 
his Laws, and could have done nothing againft them, 
without Violence and Injuftice. So that whereas it had 
been ufual in former Revolutions, to attaint in Parlia- 
ment the Defeated Party ; this Law of Hmry VII. was 
an effectual Bar againft fuch Proceedings ; and would 
be able fufficiently to proted: his Friends from all man- 
ner of Forfeitures and Attainders. This I take to be the 
genuine and true Meaning of this Law; and if I am not 
much miftaken, no other Expofition of it will be found 
fo worthy of the Charader of Henry VII; fo fuitable 
to the Circumftances of thofe Times; and fo intelli- 
gible and rational: For from hence it will prefently ap- 
pear, why Serving Heriry VII. in his Wars^ is ftyled in 
this Ad, doing their true Duty and Allegiance ; and why it 
is alfo faid, to be againft all Laws^ Reafon, and good Con^ 
fcience^ that Subje&s Jhould fuffer for fo doing; viz. be- 
caufe Henry VII. having a Right at that Time to be 
confider'd as King de Jure^ he had a good Title to the 
Obedience of his Subjeds; and confequently thePunifh- 
ifig them upon that Account, would have been an Adion 
in itfelf highly unreafonable, and unjuft. And this was 
fo far the Cafe of Richard III, that had he made fuch a 


1 68 The Hereditary Right of the 

Law as this, for indemnifying thofe, that fought for him ^ 
they could not poffibly have been attainted by Hen* 
ry VII : So that the Wifdom of this Law, thus ex- 
plained, is highly to be extolled, and is truly admirable ; 
lince now, whatever might be the Events of War, Sub- 
jeds could never fufFer for defending their Lawful 
(j ) Prince ; the Power of the prevailing Invader being 
now limited to that Degree, that he muft firft do Vio- 
lence to the Laws, before he could hurt the Perfons or 
Fortunes of thofe that oppofed him. A Confideration 
undoubtedly of great Moment, for the encouraging of 
• Subjefts to perfevere in their Fidelity to Lawful Princes ; 
for though it ever was, and will be againji Reafon^ and 
good Confcience^ to punifh Perfons for doing this their Du- 
ty ; yet it will always be found true, that the general 
Laws of Nature have never that Authority and Influence 
over Ambitious Princes, as thcfe particular Laws of the 
Kingdom they are to Govern. And the Reafbn is 
plainly this; becaufe they had much rather offend God, 
whom they do not fear, than their People, whom they 
do. And therefore, tliough it was an Aftion in itfelf 
juft, and lawful, to defend Richard III. againfl Hen- 
ry VII, who had no manner of Title to the Crown ; 
yet fince Richard v/as, in other refpeds, no better than 
a King de Fa&o ; and no Aft of Parliament had parti- 
cularly provided for the Safety of thofe, that fought for 
him ; we fee Henry VII. Vv^as fo little moved with any 
Confiderations of Reafon^ and good Confcience^ as to pro- 
ceed with the utmoft Severity againft them in his Par- 

B Y what I have fa id upon this Occafion, it is evi- 
dent, that Henry VII. could propofe no Advantage to 
himfelf from this Statute, any otherwife, than as he 

(j») is^otb Sept. 1644. King Charles I. Arms againft us ; which they may find 

i^ued out a Proclamation, declaring hts Rc' plainly fet down in the Statute of the 

j'olMtions for afpeedy Peace ; in which are nth Year of Jienrj VII. cap. i. The 

the following Words. We do defire all of PerufJ of this Statute he had earnefily rt- 

them, as well in our own C^uarters, as commended before, in his j4nfwer to the 

where the Rebels have ufurped a Power, Declaration ef the Parliament^ May 4. 

to take into ferious Confideration the 1 642. y4nd afterwards, in his Anjwer t» 

Duty and Loyalty, which by the Law of their Remonftrance, May 26. 1642. Jpeai- 

God, and their Oath of Allegiance, they ing of this Statute, he Jays, His Good 

owe to us ; and more particularly that Subje£h will read it with Comfort. 

Part thereof, which concerns the De- See Rufliworth'/ CoUeftions, Part 3. 

fence of our Perfon, and Afliftance of Vol. I. p 5^8. 
us againft Rebels, andfuch as rife in 


Cro'wn of England afferted, &c. l6^ 

was King de Jure ; that is, as he was in Danger from no 
Adverfary, who had a better Title than himfelf. And 
from thence I (hall prefume to inferr, that the Intereft 
and Security of the Followers of Kings de FaHo^ was 
not the original Defign or Intention of this Law. If it 
is objefted, that whatever the Intention of the Lawgivers 
might have been, the Words of it are plainly applicable 
to Kings de Fa&o ; and in this Senfe have been often ex- 
pounded by fome of the moft eminent Lawyers ; I muft 
deny, that the Words are thus fairly to be underftood : 
And indeed if they were, the Aft would be manifeftly 
inconfiftent with itfelf. Firft^ I fay, the Words are not 
properly and fairly applicable to a King de FaHo ; be- 
caufe, though a King de Fa&o is a King for the Time be^ 
inv^ yet he is fuch a one, as could not poffibly be thought 
of in this Statute ; for Kings de 'jure cannot well be fup- 
pofed to intend the Good and Intereft of Vfiirpers ; nor 
could Henry VII, for the fame Reafon, mean any other 
by a King for the Time beings than fuch a one, as himfelf 
was : And whoever is of a contrary Opinion, may as 
well believe, that Henry VII, when he made this Sta- 
tute, defign'd it only for the Service of Ferkin Warbeck^ 
who was like to be King for the Time being in a few 
Months, for any thing that could be certainly forefeen 
to the contrary. Secondly^ This Law would be inconfi- 
ftent with itfelf, if applied to Kings de FaBo ; for the 
laft Claufe of it utterly excludes fuch an Interpretation. 
The Words are thefe ; Provided alwaie^ that no Perfon or 
Per fins Jhall take any Benefit or Advantage by this AEiy which 
Jhall hereafter decline from his or their faid Allegiance : That 
is, whoever at this Time (when Henry VII. was threat- 
ned with an Invafion) ftiould declare for Perkin Warbeck^ 
and (liould endeavour to fupport his Intereft, and main- 
tain him in his unjuft Acquifitions ; they were not to 
have the Benefit of this Statute, if ever HenryWl. (hould 
again recover his Right j though they might plead they 
had been in the Service of a King for the Time being. 
From whence it is beyond Contradi6tion evident, " even 
by the Authority of this Statute, tliat there may be fome 
Kings de Fa&o^ to whom it may be dangerous to do any 
Service ; I mean fuch, as Qiould depofe a Rightful Prince, 
(which was the Defign of Perkin Warbeck) and place 
themfelves in his Throne ; for it is exprefly declared in 

X X the 

170 The Hereditary Right of the 

the Claufe abovementioned, that this Statute ihould not 

be available to any Perfons, who a6l in the Defence o£ 

(*) Thisi^ fuch Ulurpers againft the(z) Prince, to whom their AU 

TJXt /^^««« was before due. 

feif. View, But if, notwithftanding all I have now urged to the 

^' ' contrary, it fhall be ftill thought reafonable to believe, 
that this Statute was at firft intended, and may, upon a 
proper Occafion, be made ui'e of, for the Intereft and 
Benefit of the Adherents to a King de Fa&o ; I muft how- 
ever defire thofe, who are of this Opinion, to abate 
fomething of their Confidence, till thofe, who are the 
proper Judges of fuch Matters, have by their publick 
Refolutions determin'd the Senfe of it. For though 
fome great Lawyers have left certain PaflTages in their 
Writings, in Favour of this Opinion, (which I am 
haftning to examine) yet the Meaning of this Law was 
never yet afcertain'd by any Judicial Proceedings; nor 
was it ever yet put in Execution by the Courts of Juftice. 
It was pleaded indeed by the Regicides^ at their Tryal ; 
and they were the only Perfons, that ever claim'd any Be- 
nefit from it ; but it is well known, the Court over- 
ruled their Plea, as not at al) pertinent, or of any man- 
ner of life upon that Occafion. It is true. Chief Baron 
Bridgeman did then give his Opinion concerning this Sta- 

(a) J.Cookv tute, uiz. (a) That it was made for a King de Fadto againft a 
'^''' King de Jure: But I fhall prefently (hew, that his Lord- 
fhip's ufual Exad:nefs herein fail'd him; which could 
not poffibly have happened, had the Confideration of this 
Statute come properly before him, and any Strefs been 
really laid upon it; for then his Lord (hip would have 
had more Leifure to form his Judgment, before he had 
delivered it. So that if it fhould fall out (as who can 
tell, what Revolutions may happen in a Country given 
to Change ?) that a King de Jure^ fome time or other, 
fhould by Force and Violence difpofifefs a King de Fa&o 
of his Throne; who can be fure, what the Opinion of 
Parliament, or the Judges may be, when thofe that (halt 
have followed the Fortunes of the King in PolTeffion, 
fhall plead this Statute for Protection and Impunity ? 
Surely it may be a Que(^ion, whether then fuch Perfons 
will be allowed to have done their true Duty of Allegiance ;. 
and coniequently, whether I arn in the wrong or no, 
is at leaft a Point not yet decided ; cannot fafely be fub- 


Crowt of England ajferted, &c. 171 

mitted to any private Judgment; and may poffibly at 
laft be determined agreeably with the Opinion 1 have now 

I AM in the next place to take Notice of certain Paf- 
fages, which the Doctor has cited, to prove, thatfome 
of the greateft Lawyers have been of his Mind in the 
Expofition of this>Statute ; but fince my Lord Bacon and 
JBridgeman are the only two he has mentioned, who fpeak 
directly, and purpofely concerning it, I need not trou- 
ble myfelf at prefent about any other. As for my Lord 
Bacon^ I muft confefs, I am at a Lofs, how to under- 
hand him, when he fays, {b) This was a Law ofafirange (h Hift. 
Nature^ rather Juji than Legal^ and more Magnanimous than j^]' ''* ^' 
Provident ', for it is not eafy to conceive, how a Law can 
be yw^, and notle^a/; unlefs his Lordfhip meant, that 
it was not agreeable with the Laws then in Being, and 
the Gnfiitution of the Government: Which Opinion 
would be directly contrary to what the Do6lor has af- 
lerted throughout his Books; where we are often told, 
that the Indemnity of thofe, who ferv'd a King de Fa&o^ 
was fufficiently provided for before Henry VII.'s Reign. 
But I return to ray Lord Bacon ; He tells us, that this 
Law was more magnanimous than provident : And foon after 
he fays, it had Parts of prudent and deep Forejight ; be- 
caufe People were thereby hindred from bufying themfehes in 
prying into the Kings Title ; for that however it fell^ their 
Safety was now provided for. And upon the fame Ac- 
count, he thinks it agreeable to Reafon of State ; be- 
caufe otherwife the Sub]e&s might trouble themfehes with 
Enquiries into the Jufimfs of the Kings Title^ or Quarrel. 
But I think 1 have clearly proved, that Henry VII, 
at the Time of Making this Law, had a good Title a- 
gainft every body ; fince his Queen's Confent was never 
doubted of, wbofe Claim and Oppofition alone could 
render him an tifurper. So that he had no Caufe to be 
difturbed about the People's prying into his Title^ fince they 
could not difpute his Queen's ; upon which, at laft, if 
he had found it neceffary, he would have been fure to 
have plac'd his Confidence and Dependence. For, I beg 
Leave to add, had Perkjn Warbeck been the Real, as it 
was well known, he was only the Fictitious Son of Ed- 
ward IV ; and had his Enterprize fucceeded ; Henry VII. 
was too wife a Prince, to imagine, this Law of his would 


172 The Hereditary Right of the 

have been able to fecure thofe, that fought for him : He 
knew very well, by the then late Example of £t/tpW IV, 
that the Laws of Kings de Fa&o could not bind Kings de 
Jure^ efpecially when direftly againft their Intereft and 
Advantage ; and therefore had he been in Danger from 
any Rightful Pretender^ he would not have given himfelf 
the Trouble of making a Law, that could do his Party 
no Manner of Service. Let it not now be thought too 
great a Prefumption in me, to fay, my Lord Bacon was 
miftaken in this Point ; for as he could not be a Man, 
if he was not fubjed to Error ; fo he may ftill be a great 
one, though his Judgment fometimes fails him. 

M Y Lord Keeper Bridgemans Opinion is in the Tryal 
of Cook the Regicide ; where fpeaking of this Law of 
Henrj VII, he has thefe Words; King Henry took Care 
for him who was King de Fado, that his Subje^s might be 
encouraged to follow him ; to prejer'ue them , whatever the 
Event of the King was. And again. That that King Hen- 
ry VII. did^ was to take Care of the King de Fa(5to againft 
W '^tt^', the King de Jure. . This PafTage the (c) Do6tor fancies is 
\dfhew, fully to his Purpofe ; though, in another Place, (d) he 
p. 65, 66. allows Henry V II. to be a King c/e Jure ; and the Truth is, 
who the King de Jure was, that Henry VII. took Care a- 
gainfi in this Statute^ will be paft any one's Power to find 
out. I muft take the Liberty therefore to fay, with a 
juft Deference to the Learning and Judgment of that 
worthy Perfon, that his Lordfhip fuffer a himfelf here 
to fall into this Error, through Inadvertency, and want 
of a due Regard to the Condition and Circumftances of 
Henry VII, who was fo far from being barely a King de 
Fa^o., at the Time we are fpeaking of, that it will be 
very difficult to have a right Nation of a King de Jure^ 
if he was not fo. 

The Do6tor will not give me Leave to finilh my 
Difcourfe on this Argument ; and I muft obey him. It 
had been obje6t:ed, that when the Duke of Northumberland 
was tried for being in Arms for the Lady Jane Grey.^ it 
would have been proper for him to have pleaded this 
Statute, if it was really for the Benefit of thofe, that 
ferved a King de Fa^o ; and it had likewife been ob- 
ferved, that he did actually ailed ge in his Defence^ that 
he a&ed by a Commijfion under the Great Seal, and by Or- 
der of a Privy Council; to which the Reply made by the 


Cmvn of England averted, iicc, ' 175 

Court was, That the Great Seal, which he pretended for hii 
Warranty was not the Seal of the Lawful Queen of the Realm^ 
but the Seal of an Vfurper^ who had no Authority. (StowV 
and Holinfhead'i Chronicles.) Now the Doctor has not 
thought fit to take Notice of this Declaration of the; 
Duke of Northumberland^ Judges ; but contents himfelf 
with the following Anfwer : Firji-^ (e) He fays, it is to (e) r,ew; 
be ohferued^ that Queen Mary, in a Letter Jhe writ to fk,P-'^7,&c. 
Lords of the Cnuncil^ notified her Claim.^ and required them^ 
' upon their Allegiance., to proclaim her Title at London : That 
this Letter was delivered to the Lords^ not only before they had 
proclaimed the Lady Jane, but before they had publijhed King 
KdwardV Death.^ or fo much as acquainted the Lady Jane 
with their Defign tofet her up to fucceed him', as appears both 
from the Bifhop of Sarum'j Hiftory of the Reformation, 
and from Dr. HeylinV. The latter has printed this Letter at 
large ', in which there is a Pajfage., that would induce one to be* 
lie-ve^ that Jhe had been proclaimed fomewhere before Jhe writ 

But, F/r^, Were the Doctor in the right in all thefe 
Points of Hiftory, they would not fully turn to his Ac- 
count : For were it true, that the Lady Jane was never 
in Pofifeflion of the Crown ; and confequently, that the 
Duke of Northumberland did not a& Under the Broad-Seal.^ 
and by Order of the Council of a Queen de Fadto ; yet it 
would be neverthelefs true alfo, that the Judges were of 
Opinion, that the Broad^Seal of an Vfurper was of no Au^ 
tkority; which is the main thing the Doctor's Ad verfa- 
ries infifted upon ; and therefore chiefly deferved his Con- 

Secondly., It is not fo clear a Cafe, as he is pleas'd to 
believe, that the Lady Jane was not in Pojfejion of the 
Crown ; for not only her own Council was of that Opi- 
nion ; but Queen Mary feems to confefs it ; and many 
Circumftances concurr to fhew, it was a Fa^t, which 
could not well be doubted of. Firfi., I fay, her own Pri- 
vy Council made no queftion of her being Queen de Fa- 
Bo ; for they exprefly affirm it in their Letter to the 
Sheriff of Kent ; which begins thus : (/) After our (/) This 
hearty Commendations., &c. Whereas the Queen s Highnefs jaud^u^ 
Queen Jane, being prefently by Jufi Title in full PoJfeJJ^on 12 1553. 
of the Imperial Crown of this Realm.^ and other Dominions.^ efitni/ikt 
and Pre-eminences thereunto belonzins^ &c. which I Ihould not ^^""'^ '"J^' 

6 &-> . Appendix, 

Y y innftN.5. 

1-74 The Hereditary Right of the 

infift upon, if we were only difputing the Point of 
Right ; for therein we are fure they err'd. But wlie- 
ther the Lady y^ne was in PoffeJ/ion or no, was a Matter of 
Fa&^ which they could not be miftaken in ; and 1 hope 
the Charaflers of Archbifhop Cranmer^ Sir William Cecily 
and Sir John Cheeky (three of the Subfcribers to this Pa- 
per, not to mention the reft) will protect them from the 
bafe Sufpicion of faying any thing, contrary to their 
Knowledge. Secondly^ Queen Marj herfelf confeffes as 
much ; for flie openly declares, (g) That her oven mofi 
Lawful Foffejfion was for a Time dijiurbed and difquieted^ 
by the Trayterows Rebellion and Vfurpation of the Lady Jane 
Grey ; and we have obferved, that the Judges gave their 
Opinion at the Tryal of the Duke of Northumberland^ that 
the Broad-Seal of that Lady, being an Vfurper^ was of 
no Authority : Now (he could no other wife difturb the 
PofeJ/ion of that Queen, than by being in the Throne 
herfelf; neither could the deferve the Name of an Vfur^ 
pr, but by fettling the Crown upon her own Head, 
vvhich belonged to another Perfon. Thirdly^ Several 
other Circumftances concurr to (hew, it was a Matter 
of Fad-, that cannot well be doubted of: Did not 
King Edwardh Council openly and avowedly declare for 
Her ? Did not all the Judges, and many of the firft 
Quality in the Kingdom, fubfcribe to King Edward\ 
Demce of the Succeffion ? And was not the (h) chief 
Body of the Nobility on her fide ? infomuch that it 
may be queftion'd, whether the Duke of Northumber- 
land could have been tryed, if thofe Lords had been 
excepted out of the Number of his Judges, who had been 
guilty of the fame Crime with himfelf. Laflly^ Was 
not the City and Tower of London^ and all the Forts of 
the Kingdom, in her Hands ? And was there any vifible 
Power in the Realm for fome time, that feem'd capable 
of oppofing her Pretenfions ? But after all, the (/) Doctor 
is pofitive, that Jhe was never fettled in the Throne ; but felly 
vphilfi the Duke of Northumberland and hk FaBion was 
firuggling to thruji her into it. But (he might be Queen 

Cg) I Mar. 4. 

Chj The Lady JaneV Gmcil in their 
Letter to Queen Nbry (June 9. in Fox 
and Holinlhead) tell her. That King Ed- 
rpard had appointed the Lady Jane his 
Succeflbr, by his Letters Patent, fign'd 


with his own Hand, and fealed with the 
Great Seal of England, in Prefence of 
the moft part of the Nob]es,Counfellors, 
Judges, &c. fubfcribing the fame. 
OJ new, p. 68. 


CroviJt of^^ngldXid aJfertedyhcL 17,^ 

de FaSlo^ thb' (he was not fully in Pojfejfion ; for he allows 
the Title of King to Stephen, tho* for much the greater 
Part of his Reign, he was hardly Matter of more than 
half the Kingdom ; and Edward IV". is faid in the {k) Re- 
cords, to ham been in Tojjejfion of the Crown from the ^th 
of March, tho' Henry VI. was then at the Head of a greater 
Army than his, and the fatal Battle of Towton-Field wa^ 
not fought till fome while after. 

Thirdly, The Doctor's Obfervations from Hiftory , again (t 
the Pofleffion of the Lady Jane^ are not fo inconteftable^ 
as he may imagine. Queen Marys Letter to her Bro- 
ther's Council, which he cites from Dr. Heylin, had been 
firft printed by Mr. Fox and Holinjhead : Now, though fhe 
lays Claim to the Crown in that Letter, yet fhe did not 
affume the Regal Title and Style ; for it is not Dated in 
the Firft Tear of her Reign: And Dr. Heylin will acquaint 
the Dodor, that (he did not take upon her the Name of 
Queen, till fhe came to Framlingham Caftle in Suffolk, 
which was eight or nine Days after King Edward\ 
Death. From whence we may obferve, that the Do6tor 
is alio miftaken in another Point of Hiftory, when he 
pretends, that Queen Mary had been proclaim'd Queen^ 
before the Lady Jane: This could not certainly be done 
by her Order , before fhe took upon her the Title of . 
Queen, which I have fhewed was not till the fourteenth 
of June ; but the Lady Jane was proclaim'd on the tenth. 
Queen Mary indeed fent to the Mayor of Norwich on the 
twelfth oijuly to proclaim her; but (/) my Author fays^ 
finding the Norfolk Men not fo forward as/he expeSied,Jhe re- 
moves with her fmall Party to Framlingham. That the 
Lady Jane knew nothing of the Defign of making her 
Queen, three or four Days after King Edward's Deaths is 
hardly credible; furely fhe knew,^ that King Edward had 
appointed her his SuccefTor, a Month before : And Do- 
ctor (m) Heylin fan Author whom the Doctor choofes to 
cite upon thefe Occafions) exprefly affirms, That (on 
the tenth of June) the Lady Jane could not be ignorant of 

(I) Rot. Pari. \ Edw. 4. It is decla- 4th o^Mmts, of all Caflles. Lordfliips; 

rei. That Edward IV. was in Right,from Manners, Lands, &c. as Riciiard II. was * 

the Death of the Noble and Famous poffeffed of, in the Feaft, of St. AZ/Jw/jor, 

Prince his Father, very juft King of En^- in the 23d Year of his Reign. 

Undy and in the 4th Day of Mxrch in (I) ]. Stow'; Chron. and Dr. Heylin*/ 

Lawful Poffeffion of the faid Realm. — tiifl. Ref. 

And afterrvardj, he is faid to have been (mj Kfi, Ref. p. i^p. 
lawfully feized and poffeffed, &om the 


176 The Hereditary Right :of, the 

that which had been done^ in order to her Ad'vancement to the 
Royal Throne. But (the Dodor adds) the Lady Jane xbai 
no Lawful Queen ; /he had no Confent of the States^ no Recog" 
nition by Afl of Parliament^ as all thofe Kings have had^ 
whofe Royal Authority has been ovprid by the Laws.^ without an 
Hereditary Title. By this Anfwer the Dodtor has plainly 
altered the State of the Queftion : Hitherto he had laid 
it down for Law, that whoever was in PoJfeJ/ion^ was a 
Lawful King ; now it feems, that is not enough ; but the 
Confent of the States^ and Recognition in Parliament is neceffa- 
ry. I am not now at Leifure to difpute this Point with 
the Do6tor : But if the Power of the People is fo confi- 
derable, that they can create a Title, when they pleafe, 
by their bare Confent; I am afraid, they can deftroy 
one too, only by withdrawing it ; and what any Repub' 
lican can defire of the Doftor more than this, is hard to 
divine. Laftly : The Do6tor concludes. The Duke of 
Northumberland had no Right to flead this Statute ; for be- 
ing the principal Author of this Revolt^ he was by the laji 
Claufe of this AB cut off from any Benefit of it. This AB 
was made for the Security of thofe, who Jubmit to a King for 
the Time beings after he is ejlabli/h'd; not for thofe^ that over^ 
turn Gomrnments ; who whatever they may plead for them^ 
fehes^ it can nemr he the Ek'Venth of Henry VII. Here 
we have the Doctor's Confeffion, that whoever are inftrU' 
mental and active in putting the Lawful Heir from his 
Right, may be truly term'd Revolters ; and confequently 
cannot claim any Benefit from this Statute. So that had 
the Lady 'Jane reign'd as many Years, as (he did Days ; and 
had Queen Mary at laft forced her from the ThroFie ; the 
Duke oi Northumberland would have been ftill in the fame 
Danger, and liable to be punifii'd as a Revolter. This, 
by the Doctor's Leave, is fuch a Blow to the Power of 
Kings de FaBoy as could not well be expected from their 
profefled Advocate ; for now it feems, thofe Perfons, to 
whom they owed moft, are leaft capable of their Prote^ 
ftion ; and their beft Friends muft unavoidably be in the 
worft Condition : For whenever the Heir {hall recover his 
Right, there is no Law to (belter from his Refentments 
fuch as oppofed his Claim, and lent their Afliftance to 
his Enemy. And who can tell, upon fuch a Revolution, 
how great a Number ofSubjeds may be comprehended 
under the Name of Revolter s ? Whoever took up Arms 


Cronxn of England averted, &c. 177 

for him, or affifted him with Men and Money ; the Sol- 
diers that fought for him ; the Divines that made it Gof- 
pel ; and the Gentlemen of the Inns of Court^ that made 
it Law, are all involved in the Guilt of Departing from 
their Allegiance, by Virtue of this Claufi^ as the Do6tor 
has expounded it. Thus we fee, into what a narrow 
Compafs the mighty Services, which were hoped for 
from this ASi of Henry VII, are reduced by the final 
Claufe of it. When the Government indeed of a King 
de FaEio is fettled, and his Enemies entirely fubdued, 
the Doftor thinks it a juft and wife thing to fubmit and 
fwear to him ; arid will warrant it to be lawful by the 
Authority of this Statute ; but for thofe that (hall have 
brought about this Settlement, who may be fometiraes 
the chief Gentry and Nobility of the Kingdom ; they 
are all abandon d to the Mercy of the Injur'd Prince, if 
he ever returns ; and muft be beholden to him, if they 
efcjpe with Impunity. The Doctor's laft Refuge in this 
Cafe can be only this ; That by Virtue of a Pardon from 
a King de FaBo, when he is thorowly fettled, thefe Re- 
wlters will be fafe againft a King de Jure. But if the 
ABs of Parliament of thofe Pretended Kings were not of 
fufficient Force againft Edward IV, it is to be feared, 
their Pardons will not be efteemed of better Authority. 
My Lord Chief Juftice Montague (n) declares, that he («) Seehu 
would never have fet his Hand to King Edward's Settle- pdfeS. 
ment of the Succeffion on the Lady Jane.^ \f the King ^^fi'^u- 
had not promifed him a Pardon ; which he knew would 
be good againft Queen Mary^ if ftiecame to the Crown; 
becaufe (he could only have it as a Purchafer : From 
whence it is plain, he would not have thought himfelf 
fafe, by that Pardon, if he had believed Queen Mary 
could have claimed the Crown, by Right of Inheritance. 
I would recommend this to the Doctor's Confideration. 
He is pleafed indeed to add, {o) that Kings de Fa&o have C) ^o"; 
aiSually given Indemnity by Parliament, to thofe that ^''^^''^^V 
aOifted them in obtaining the Crown ; and he inftances 
in the A?j of Henry III, Henry IV, and Henry VII, 
which were purpofely made for proteding thofe, 
that had been adive in advancing thofe Princes to the 
Throne. But if Edward II, and Richard II, had ever 
recovered their Thrones, does the Dodtor ferioully be^ 
lieve, thofe A&s would have been really available for 

Z z the 

178 The Hereditary Right of the 

the Indemnity of their Rebellious Subjeds ? I am per> 
fuaded, the Kings that made them, were never of that 
Opinion. The troe Reafon of theie AHs was to prevent 
Vexatious Suits, and other Profecutions by one Subject 
againft another. For many A6ts of Violence, and Out- 
rages having been committed, upon the Account of fuch 
Invalions, which expofed the Doers of them to the Se- 
verity of the Law ; the Injured Subjects might have had 
their Remedy againft thofe Offenders, by IndiHments for 
Murder, ABions of Trefpafs, tlyc. unlefs timely di fabled 
by A^s of this Nature ; which will be always neceflary 
for the Adherents to unjuft Pretenders^ who depofe Law- 
ful Princes. But the Cafe is quite different, when Kings 
de Jure are the Invaders ; for whoever affifts them in 
their Quarrel, need no Ad of Parliament for their In- 

Thus I have fully confider'd all, that the Dodtor 
has been pleafed to urge from the Eleventh of Hen, Vli ; 
and by what I have obferved upon this Occafion, the 
Reader will undoubtedly be furprized at the following 

(f) rtm, PafTage in the Doctor's View, (p) Thofe who fought for the 
P- '^7- jpCirzg for the Time beings wanted no ASl of Parliament to in-' 
demntfy them ; nor had they any. And again : Did the 
King in Pojfejfion.^ or his Parliament^ or the Parties concerned.^ 
ever think an AB of Parliament was wanting for thoje^ who 
fought for him^ (^g^i^J^ ^ Perfon out of Poffejfion.^ whate'ver 
Title he had^ or pretended to have ? Can there be one Inftance 
given of this, in all our Laws or Hifiory ? But afterwards 

(q) P. 68. he tells us, (g) This A& [viz. 1 1 Hen. 7^] was made 
for the Security of thofe^ who fubmit to a King for the Time 
beings after he is eftablijhed. The DcxStor may try to re^ 
concile thefe Paffages, if he pleafes. 

Laftly., After all that has been faid concerning the 
Meaning, and Authority of this Statute, may it not be 
doubted, whether it is now in Force ? My Reafon is 
this ; In King WiUiamh Reign an k(X was pafTed, which 
declares the Subjects abfolv'd from their Allegiance, if 
the King of England fhould ever appear to be a Papif! : 
Now this AB cannot poffibly fignify any thing, if Sub^ 
jeBs^ who ferve and defend the King for the Time beings da 
their true Duty and Allegiance ', as is affirm'd by this Law of 



' Ch^vn <?/* England afferied/^CQ. 17^ 

And now having had Occafion to mention the Cafe 
of Queen Mary and the Lady Jane Grey^ I beg Leave 
to fubjoin the Judgment of the Lord Chief Juftice Hale^ 
upon that Matter, as not unworthy of the Reader's Ob- 

(r) If the Right Heir of the Crown be in aSiual Ezercifi of (OHifiorii 
the Sovereignty ; fuppofe in one Part of the Kingdom^ and an Cor^TMS. 
V fur per be in the atlual Ezercife of the Sovereignty in am* ^°^-^- <^-^^ 
ther ; yet the Law judgeth him in Poffejfion of the Crown^ 
that hath the True Right ; and the other is in Truths not Jo 
much as a King de Fadto, but a Vijlurber only ; and therefore 
not a King within the Twenty Fifth of Edward IIL Thir 
was the Cafe between Edward IV, and Henry VJ. Altho' 
Edward IV. took upon him the Sovereignty^ and was declared 
King in London upon the Fourth of March 1 460 ; yet Hen- 
ry V I. was in the Northern Parts^ and treated as a King^ and 
raised a great Army, vphich being Jubdued by King Ed-. 
ward IV, in the latter End of May, in the bloody Battle of 
Towton- Field ; then^ and not tiUthen^ had Edward IV. 
the total and quiet Pofjejfion of the Crown ; and in November 
following held a Parliament^ wherein his Title is declared;^ and. 
the Commencement of his Reign ena&ed to be the Fourth of 
March before ; and Henry IV, Henry V, and Henry VI^ 
declared Ufurpers. During this Interval^ from the Fourth of 
March to June, Henry VI. was ufed as King^ and yet was^ 
not fo much as King de Fado ; Edward IV, the Right 
Heir, being likewife in Poffejfion of the Regality, 

The like was between Queen Mary, and the Lady Jane 
Dudley, who was proclaimed Qiieen at London, by Pretence of 
Nomination by King Edward VI ; but held not that Title a- 
hove ten T)ays. For the fame time Queen Mary openly laid 
Claim to the Crown^ and was alfo proclaimed Queen : So that, 
both being de Fado in Pojfejfion of the Crown,^ the Law ad- 
judged Pojfejfion in her,, that had the Right,, viz. Queen Mary ; 
and therefore by an A& of Parliament (l Mar. c. :^.) it is, 
ena&ed,, that Recognizances dated Anno Primo Reginae Jane, 
Jhall be allowed as good ; which needed not have been,, if Jhe 
had been Regina de Fadlo, though an Uiurper : Becauje 
Judicial A&s are not Diminutions of the Regal Revenue, 
9 Edw. 4. 15. II. 

And if any JImU fay,, that if Henry VI, or Qiieen Jane, 
had gotten the Vi&ory,, and Poffejfion of the Crown, that pojfi- 
bly as much would have been ajferted by them and their Parlia' 


I So The Hereditary Right of the 

merits againft Edward IV. and Queen Mary ; This is an Ob' 
je&ion of no Value ', for I do not take my Meafures herein 
from Ewnts^ which are ^various and uncertain ; but according 
to the true Right of Matters^ purjiiant to the Laws of Eng^ 
land, as near as I can. 

I T remains now to be confider'd, what Authority is 
to be attributed to the Opinion of Henry VII.'s Judges, 
concerning the Crowns taking away all Defe&s and Stops of 
Blood; and whether it is of that mighty Advantage, as 
0) See nm, has been pretended, for Kings de FaBo. The {s) Doctor 
P-^°''^2' 45- indeed infifts much upon it, and cannot forbear frequent- 
ly afluring his Reader, that he repofes an entire Confi- 
dence in it. Let us now fee, whether this Refolution of 
the Judges, as unanimous as it was, can afford any fub- 
ftantial and real Encouragement to the Advocates of 
Kings de Fa&o. In the firft place therefore I obferve, 
that this unanimous Refolution of the Judges was Eztra-^ 
Judicial.^ and confcquently of lefs Authority, than if it 
j^iumLt'* ^^^ ^^^" given upon the Bench ; (t) for when they deli- 
refoh'd in qjer their Opinions out of Court ^ they do not hold themfehes to 
Si^^p?o Zie upon Oath ; and therefore, tho* two or more /hould be of a 
different Opinion from the refl^ they do not refufe to fign the 
Refolution of the major Part ; and fo it goes under the Deno^ 
mination of all the Judges. The unanimous Opinion of 
the Judges is undoubtedly of great Authority ; but I am 
(*) f^tew, afraid the Dodor attributes too much to it, when(«)he 
makes ltd. Fart cf the Common Law of this Realm: For it 
may be remember'd, that the whole Bench of Judges 
were at firft unanimous in the Cafe o^ Ship' Money ; and yet 
the Do(Sor knows, that Opinion was condemned as erro- 
neous. I muft beg Leave therefore to think it poiTible, 
that the Reverend Bench may Ibmetimes err in their Rc- 
folutions; and whether they did not in the Cafe before 
us, is now the Queftion. Secondly^ Therefore I affirm, 
that this Propofition, mz. That the Foffejfion of the Crown 
removes all Defe&s in Bloody and all other Impediments.^ is 
not univerfally true; for if it were, then no AHs of Par- 
liament for Difabling or Excluding any Perfons from the 
Succeflion, could be of any Force, when luch Perfons 
are on the Throne; nor in the leaft reftrain the Subjects 
from paying their Allegiance to them. An AlTertion, 
which highly reflects upon the Honour and Wifdom of 
thofe Parliaments, which have made it Treafon to in- 


Cro'von of England afferted, hic. i8t 

Vade and hold the Crowil) agalnft the eftablifh'd Ordet 
of Succeffion ; which have declared, that whoever (hould 
be guilty of fuch an Ad of Violence and Injuftice, ought 
to be efteem'd as no better than Vfurpers and Traitors ; 
and laftly, that it is the Duty of Subjects to take up 
Arms againft fuch Intruders^ as being abfolvM entirely 
from their Obedience to them* In King Henry VIII.'s 
A6t (z) for Eftablifhing the Sudceflion, Whofoever Jhould M 35 ^^n? 
interrupt the Succeffion appointed by Laxtf^ or by the Laji Will ' ^' 
and Tefiament of that King^ is adjudged a High Traitor, 
And in the i Edw.6. la. the following Words are re- 
markable: Be it farther ena&ed^ that if any of the Heirs of 
the King our Sovereign Lord that now is^ or any Perfon oir 
Perfons^ to whom the Crown and Dignity of this Realm is li* 
tnited by A& of Parliament^ made in the Fiue and thirtieth Tear 
of the Reign of the late King Henry VIH, or the Heirs of any 
of them^ do at any Time hereafter ufurp^ the one of them dpon 
the other^ in the Crown of this Realm ^ or demand^, challenge;^ 
or claim the fame^ otherwife^ or in any other Form or Degree 
of Defcent^ or Succeffion^ &c. hut only in fuch Manner and 
Form^ as Is declared by the faid Statute ; or if any of the faid 
Heirs or Perfons afotefaid^ do interrupt^ or let the Kings 
Highnep^ that now is^ peaceably and quietly to keep^ hauej^ 
and enjoy the faid Imperial Crown^ that then all andjingulat 
the Offenders^ &c. fhaU he deemed and adjudged High irai^ 
tors^ and Jhall fuffer and incurr the Pains of Death^ Sec. as 
in Cafes of High Treafon. From which Paflage it is uti- 
deniably plain and evident, that Perfons in adual Pof- 
leffion of the Crown, may be at the fame time no better 
than Vfurpers and Traitors>^ and liable to the Pains of 
Treafon ; and confequently , it was the Intention of 
thofe Legiflators, that fuch Perfons fhould be unable and 
incapable to hold the Crown, notwithftahding their be- 
ing Kings de FaBo. And the Truth is, if it was poflible 
for any Prince to be under a Legal Incapacity of poflef- 
fing the Crown, one would think Henry VIL Was that 
Perfon : For firft of all, as defcended from a Natural 
Son of John ofGaunt^ he was excluded by Common Law ; 
and this Exdufeon was exprefly confirm'd by AB of Par -^ 
liament. Secondly, He had been attainted in Parliaments 
And laftly, the whole Kingdom had (y) obliged them-' cyMoiVui 
khes to take^. accept^ and repute King Edward IV. and his iEdw.4; 
Heirs^ to be Kings */ England, and rione other. But it feeiiiSj 

A a a tid 

l8z The Hereditary Right of the 

no Laws can have any Force or Authority againft a King 
in Pojfejfion : This is a clear Cafe, by Virtue of the Re- 
folution o^ Henry VlVs Judges; and thofe Parliaments 
were very ignorant of their Power, which pretended to 
make Laws, to hinder Subjects from obeying Ufurpers. 
Thirdly^ Had it been a known Maxim of the Law of 
England^ That the Crown takes away all Defers and Incapa- 
cities^ according to the Do<5tor's Opinion ; we fhould 
never meet with Ads of Parliament, which approve of 
and commend Actions done in Contempt of it. Thus, 
for Inftance, we find Attempts made by the Right Heir 
for recovering his Inheritance, juftified as agreeable to 
the Laws of G o d and Nature ; and the Difpoffeffing of 
the Intruder, declared Juft and Legal. Let the Dodor 
be pleafed to caft his Eyes upon the following Paflages, 
and he will be fenfible, I do not impofe upon him. 
(;t)Rot.farl. {z) Richard Duke of York attempting by Force of Arms 
I Edw. 4. ^^ recomr his Right to the Crown of England againfi Hen- 
ry VI, ufid the Benefit of the Law of Nature^ not having 
then any Lord above him in England butGon ', and it was 
Lawful^ and according to Law^ Reafon^ and Jufiice for him fo 
(4) Ibid, to do. And it is farther declared, {a) That the Taking of 
Poffejion^ and Entree into the Exercife of the Royal Eftate^ 
Dignity, Reign, and Governance of the Realm 0/ England, &c. 
by our Sovereign Leige Lord King Edward IV, i^c. and the 
Amotion of Henry, late called King Henry VI, from the Ex^ 
ercife. Occupations Vfurpation, Intrujion, Reign, and Governance 
of the faid Realm, &c. done by our [aid Lord King Edw. IV, 
wds, and is rightwife, lawful, and according to the Laws and 
Cujioms of the faid Realm ; and fi ought to be taken, holden, re- 
puted, and accepted. I may leave it now to the Reader to 
determine, whether fuch Princes could have a Right to 
the Allegiance of thofe, who might lawfully, and juftly 
depofe them ; and I am much miftaken, if the Dodor 
will find it poffible to elude the Force of thefe Authori- 
ties. I had Reafon therefore to fay, it is not univerfally 
true, that the Crown takes away all Defers and Incapacities ', 
for then Kings in Pofl'effion could not poflibly be Vfur^ 
pers, or Traitors ; neither could it be ever juftifiable to 
attempt their Removal from their Thrones ; which yet 
we fee has been warranted by feveral Ads of Parliament. 
Laflly, The Dodor cannot reafonably imagine, that the 
Opinion of Henry Vll/s Judges ftiould be of fufficient 


Croim of England afferted, &C. iS'j 

Authority to determine the prefent Controverfy ; f'or 
this is making a King t/e YaHo Judge in his own Caufe ; 
who will not fail to interpret the Laws, as they may belt 
ferve his Purpofe. At this rate, I confefs, the Doftor is fure 
of gaining his Point ; and he may be confident there ne- 
ver was, nor can be in Nature, fo ftrange a Creature, as 
an Unlawful King. I cannot however but wonder, that 
a Perfon fo eminent for his Knowledge and Penetration, 
as the Lord Chancellor Clarendon^ fliould fo little difcern 
the Evidence of this Maxim, as to think the Judges could 
not fairly apply it to the Cafe of Henry VII. His Words 
deferve to be taken Notice of, as a ftrange Inftance of 
Short-fightednefs in that great Man ; and therefore I 
(ball recite them at large. Neither will that Jingle Precedent 
(fays (b) he) of the Judges^ in the Cafe of King fenry VIT, V') m.^t^ 
when they declared the Aci of Attainder to be void by the Accejfion Part 2. p. * 
of the Crown^ {tho if he had been in Truth the Perfon^ u^on ^3°- 
vphom the Crown had Lineally and Rightfully defcended^ it was 
^ood Law) find^ or make the Judges of another Age parallel to 
them ; till the King hath as jhong a Sword in his Hmd^ and 
the People as much at his Devotion and Difpofal ; and then the 
jMaking and Declaring a Lavp^ will be of equal Facility^ tho 
it may bs not of equal Jufiice. Thus we fee, how unfor- 
tunate this noble Lord was, in his Opinion of this Re- 
folution of Henry V I I.'s Judges; he calls it a Jingle Prece- 
dent ; he thinks it would hardly be followed by any other 
Judges ; and plainly intimates, that it was not good Law^ 
by reafon of the Defeds in Henry VII.'s Title. And this 
one Circumftance of its being a (ingle Precedent, is e- 
nough to fpoil the Credit and Authority of this Refolu- 
tion ; for may it not reafonably be doubted, whether the 
Judges of Kings de Jure (if ever their Opinions fliould , 
be demanded in fuch a Cafe) would allow Kings de Fa&o 
the Benefit of that Maxim ? And has not another great 
Ornanient of his Profeffion fc) told us, That the Judges {c) liOim- 
in Weftminfter-Hall do fometimes deny a Cafe, that ftands '^1^^^^; 
Jingle^ and alone of itfelf ? The Do(Sor indeed (c/j 2i^mQS Argument u 
us, that in Confideration of the Authority of this Maxim, ^'^^ ca^e, 
the AEi that illegitimated Queen Elizabeth, was never reverjed P- 3°- 
by the Lord Keeper Bacon'j Advice. But the Do6tor knows p. 46. '^"'* 
very well, that Queen Elizabeth had a Title by the A^ of 
SucceJJion^ and her Father's IF/7/ ; whereas Henry Vlf. had 
no manner of Foundation, upon which he might build 


184 The Hereditary Right of the 

any Pretenfion to tlie Crown : And the Queftion is not, 
whether this Maxim would not hold good, where Kings 
de Jure are concerned ; but whether Kings de Fafio can 
legally claim any Benefit from it. I muft not forget, that 
(e) Vim, the Do6tor afterwards (e) confefres,that an A6t was pafifed 
^' ^  to reftore Queen Elizabeth in Blood to her Mother : It is 
true, he fays, this was only that Jhe might inherit the Efiate 
df her Mother^ Family^ which I am not concern'd to call 
m Queftion at prefent. But the Dodor (hould remem- 
ber, that Princes never thought it became them to flight 
A£ts of Parliament made againft them by lawful Autho- 
rity ; and therefore Henry^\\^ notwithftanding the afore^ 
(S) Bacon'/ faid Refolution of the Judges, took Care, (f) that all Re* 
^ enry 7. p. ^^^.^^^ wherein there was any Memory^ or Mention of his At- 
tainder^ Jhould he defaced^ cancell t/, and taken off' the Files ; 
left fome time or other, if they continued in Being, 
» they might rife up in Judgment againft him ; a manifeft 
Indication, that he did not think it fafe to rely upon the 
Opinions of his Judges. 

Thus 1 have followed the Do61:or through Henry VII.'s 
Reign, which feem'd indeed to adminifter much Confola- 
tion to him ; and it muft be confefTed, that many Per- 
fons, who had long fought after Reafons to juftify their 
Submifllon to the Powers in Beings fancied they had met 
with great Relief from fome Paflages, which happened 
under his Government; but I am much miftaken, if any 
folid Comfort can be derived from them. 

I MIGHT now perfuade myfelf, I am entirely at Li- 
berty to releafe my Reader from any farther Trouble ; 
every thing which occurr d in the Doctor's Writings, 
that had the leaft Appearance of an Argument, being, I 
(i) nm, think, fully confider'd by me. But the (g) Doctor having 
i..74,&c. flepped a little out of the Way, to aftertthe Right of 
the Legiflative Powers, to limit the Succeffion, (which 
may be very true, and yet Allegiance not due to Kings 
de Fa&o) I (hall beg Leave fo far to follow him, as to ex-* 
amine the Truth of fome Hiftorical Paflages, with which 
he has thought fit to illuftrate his Argument : And if I 
miftake not, this Difquifition will give me an Opportu- 
nity of clearing a Part of Hiftory, which has hitherto 
Iain in much Obfcurity. In this Undertaking I ftiall 
confine myfelf wholly to Matters of Fa& ; and therefore I 
ftiall not difpute the Authority of 1 5 Eliz, c. i . which 


Crovjn <?/ England ajfertedy &c. l8^ 

makes it High Treajon during the Queens Life^ and For* 
feiture of Goods and Chattels after her Death^ to fay^ that an 
A&: of Parliament is not of fufficient Force to limit and bind 
the Defcent of the Crown ; neither lliall I in the leaft que> 
ftion the Power of Parliament to entail the Succeffion ; 
Thefe Matters are as niuch out of my Way, as they are 
above my Reach ; and therefore I am very well content- 
ed, the Dodor fhould abound in his own Senfe upon 
them. All that I ihall here obferve is, that whatever 
Power Kings, with their Parliaments, may have de Jure^ 
upon fuch Occafions, it is however true in FaB^ that no 
Adt of Limitation could ever yet efFedlually exclude the 
next Heir by Proximity of Blood ; but fooner or later, 
Providence has hitherto fo ordered it, that thofe who 
were firft in the Line of Defcent, have at length gain'd 
the Crown, notwithftanding all Parliamentary Provifions 
to the Contrary. I believe it will be allowed, that we 
have no Laws extant of this Nature, before that of {h){.h) yHen^: 
Henry I V^, in which he fettles the Succeffion on his four ^" 
Sons, and their Heirs, after his Deceafe ; and it is ob' 
lervable, that as he was no better than King de FaSio^ fo 
none but fuch ftood in Need of any Ads of this Kind ; 
for the Common Law provided fufficiently for the Succef- 
fion of the Iffue of Kings de Jure, The next Statute we 
hear of to this Purpofe, is that of Henry VI, upon his 
Recovery of the Crown ; in which he {i) excludes Ed- 0) Hoiinf- 
tvardlV, and gives the Crown to the Duke of Clarence, ^-^^ ^^''''^ 
and his Children, immediately upon the Failure of his 
own Line ; but this had no long Continuance, being (k) ^^^J°^^"'* 
annulled, as well as that of Henry IV, upon the Succef- 
fion of the Right Heir. Richard III. is (aid to have ap- 
pointed the' Earl of Lincoln, his Sifter's Son, his Succef- 
Ibr ; and Henry VII. was no fooner placed in the Throne, 
but he alio procures an (I) A&: of Parliament, to fecure (/) Rot.ParL 
the Inheritance to his IlTue ; but it is well known, hi$^"''""7* 
Son, by the Right of his Mother, had an undoubted Ti- 
tle, without the Afliftance of his Father's Law. I come 
now to Henry VIII 's Reign : This Prince having baftar- 
dized both his Daughters by (ot) A£t of Parliament, C«) 28 Hen. 
found it necefifary to make ufe of the fame Authority, to ■^' 
render them capable of the Crown. In the Twenty fifth 
Year therefore of his Reign, another Adt is pafled, for 
the Efiablijhmcnt of the Kings Succejjion ; in which the 

Bbb Defcent 

1 86 The Hereditary Right of the 

Defcent of the Crown is exprefly limited to his two" 
Daughters, Mary^ zud Elizabeth ; and he is impowerM 
f») 28 Hen. (as he had (n) been before) togive^ ^^f^^fit appoint^ ^Jl^gn^ 
^' 7- declare^ and lim'it^ by hhs Gracious Letters Patent^ under his 

Great Seal, or elfe by his Highnefs Laji Will made in Writings 
andjigrid with his mofl Gracious Hand^ at his only Fleafure^ 
from Time to Time hereafter^ the Imperial Crown of this Realm 
(for Lack of Lawful Heirs of the Bodies of Prince Edward, 
and the Ladies Mary, and EHzabeth) to fuch Perfon or Per- 
Jons in Remainder^ or Reverjion^ as /hall pleafe hU High- 
nefs^ &c. Now the Controverfy between Dr. Higden and 
me, upon this Occafion, is, whether King Henry Vlil. 
^id truly obferve the Dire6lion of this Statute in his 
Nomination of SuccefTors , after the Deceafe of his 
Daughters. That he was impower'd to do this by his 
Laft Will and Teftament, is not denied ; and that a 
Will of his was produced and executed in fome Meafure, 
(0) Preface ta is jikewifc uot difputed ; but however the (0) Doftor is 
ejencc. p^gj-j^^^ ^\-^^^ Henry Vlll. did not execute the Powers given 
him in Parliament^ to nominate a Succejfor by his Laft WtU and 
Teftament^ Jignd with his own Hand. And in another 
(/)) Bejcnce, (p) Place, he affirms it with much Aflurance, That there 
^'^' was indeed a Will drawn for that Purpofe; but it was ne- 

 "V^^ fi^^^ ^y ^^^ ^^'^S-i ^ ^^■^'^ ^^ ^f ^^^li<^m^nt exprefly 
required^ Sec. But 1 fee no Reafon for this Confi- 
dence; and I doubt not, when the Reader has well 
confidered the following Proofs, and Arguments, he 
will allow, that the Authority of this Will is much bet- 
ter fupported, than the Doftor is willing to believe. In 
order to this, I fhall fhew. Fir ft .^ That his WiU was ad- 
mitted, publilhed, and executed as a Legal and Good 
WiU, And, Secondly^ That the Dodor has not produced 
any Objedion of Weight enough to render its Validity 
queftionable. i/, I fay this WtS was admitted, pub- 
lilhed, and executed as a Legal and Good WiU ; which 
is evident from the undoubted Teftimonies of the fol- 
lowing Records and Hiftories. 
Cq) 28 Hen. W E are afTured from the (g) Journal of the Houfe of 
8. Vide Ap- Lords, that on the laft Day of January, the Commons be- 

pendix, n. 6. . ^ r- i i r i f "^ t i ^ 

mg lent for to attend the Lords, the Lord Chancellor 
then declared King Henry VIll.'s Death to both Houfes, 
in full Parliament aHembled ; and then a large Part of 
the laid Deceafed King\ Will (particularly thofe Claufes 


Crovin of Enghnd afferted, &CCi 1 87 

df it, which related to the Succejfion of the Crown^ and i\i^ 
Adminiftration of the Government, during Edward VI.'s 
Minority) was read publickly before them, by Sir Wil- 
Ham Paget Secretary of State. Here then we fee this Will 
is fairly laid before the Parliament, the beft Judges of 
its Validity ; and we do not find, that any Doubt arofe 
in that Great Aflerably concerning it. But on the con- 
trary, we have the Authority of a (r) celebrated Hifto- p ^'^"^ '^ 
rian, That all the Executors appointed by thU WiU^ did re- Hijh R(f. 
Johe to execute it in all Points^ and to take an Oath for their g^j"^ ^' ^■■^' 
faithful Difcharge of their Truft. And that the (s) riext ^.^^-^^ ^.^ 
Day the Executors did take their Oaths moft folemnly^ for their 
faithful executing the Will ; that they order d it alfo to be en- 
rolled^ and e'uery one of the Executors was to ham an Exem- 
plification of it under the Great Seal^ (t) and out of Con- CO iMd.p.S. 

fcience to the Kings Will^ refold to fulfill what h^ had in- 
tended. Now, if we confider, who thefe («) Executors C«) ^' '^f 
were, and how eminent many of them were for their tM^ftht 
Integrity, as well as Quality ; furely it will be hard to]^^^"^'"'^' 
fay, they wanted lb much Judgment, as not to difcernN^s!" '^' 
the Invalidity of this WiU, or fo much Virtue, as to exe- 
cute what they knew to be a Forgery. But that I may 
not fail to give the utmoft SatisfadHon in this Queftion^ 
concerning the Opinion which was entertained of this 
Will in Edward VFs Reign ; I fliall now lay before the 
Reader Ibme remarkable Extracts from an authentick 
Copy of the Council Books of King Edward VI, which wjil 
fully anfwer my Purpofe. 

(z) In the Name 0/ G o d. Amen. Where it hath plea- (x) Coundh 
fed our late Somreign Lord and Maifter King Henry VllLf."^}'^^^' 
ofmofi Noble and Famous Memory.^ Sec by his laji Will and"^ i""i°- 
Tefiament bearing Date the -^oth <?/" December, in the ^^th 
Tear of his mofi Fortunate and Vi&oriom Reign^ to confiitute 
and ordain us^ the Archbifihop <?/ Canterbury, the Lord Wrio- 
thefly Chancellour, William Lord St. John, John Lord Ruf- 
fel, Edward £flr/o/ Hertford, John Vifcount Lifle, Cuth- 
bert Bijhop of Durefme, Sir Anthony Brown, Sir Wil- 
liam Paget, Sir Edward North, Sir Edward Mountague, 
Sir Anthony Denny, Sir William Herbert, Knights^ to be 
his Executors^ and to be of the Privy Council with our Sove- 
reign Lord King Edward V I, until he JJmU be of the full 
Age of Eighteen^ 8i.c. We the [aid Archbijhop^ Thomas 
Lord Wriothefly Cbamellour^ Sec. being all ajfembled togeth^ 


"t I. 

i88 The Hereditary Right of the 

in the Tower 0/ London, the laft Day 0/" January, in the ifi 
Tear of the Reign of our [aid Sovereign Lord King Edward 
VI. that now is^ have remrently and diligently conjiderd the 
great Charge committed unto us ; and calling to Almighty God, 
the only Giver of all Grace^ for his Aid and Ajjifiance in all 
our Proceedings^ have fully rejolvd and agreed with one Voice 
and Conjent^ not only to Jiand to and maintain the [aid laji 
Will and Teflament of our faid Maifler^ and every Part and 
Article of the fame, to the uttermofi of our Power^ Wits^ and 
Cunnings ; hut alfo^ that every of us ^refentjhall take a Corpo- 
ral Oath upon a Book^ for the more affured and effeBual Accom' 
plijhment of the fame. 

The Firfi Day of February, being Tuefday, all the faid 
Executors before written, affembled again together in the faid 
Tower of London, and there herd the Will eftfones deli' 
herately redde from the Beginning to the Ending. And con- 
eluding.^ with one Voice.^ to adhere and fiick to their Performance 
ofit., did firfi take their Oaths to the Kings Majefiy., and af- 
ter immediately Jware to the due and faithful Obfervation of 
the faid Will^ as the Day before they had refolved. 

Wednefday, Feb. Q. Itt^m.^ The Lord Prote&our and the 
refi of the Coexecutours then prefent.^ having the lafi Will and 
iTeJiament of our faid late Sovereign Lord deceafed.^ made Re- 
guefi with oon Voice unto the Lord Chancellour o/^England, to 
cauje the fame to be Recorded and Enrolled in Forme accufiom- 
ed. And thereupon each of them to have Exemplification under 
the Great Seal ofthefame.^ for the dcing whereof the faid Will 
vpds prefently deliver d by them to the faid Chancelkur. 

v4f Weftminfter, f^6 4.f^ o/" February ; The Lord Pro- 
te^our and others hfs Coexecutours being moft dejirous of their 
Part to fee the Will of King Henry VIIL duly and hooly ac- 
complifhed and fulfilled^ as to their mofi hounden Duties apper^ 
taineth : For their more certain and affured Proceeding in the 
Execution of the fame.^ uyn mature Deliberation refolved.^ that 
' before they would proceed^ the hole Number of Judges, Barons 
of the Exchequer, the Kings Serjeants., Attorney .^ and Solli' 
citour Jhall deliberately perufe the hole Will^ and frankly de^ 
dare their Opinion^ what the Ezecutours may lawfully do^ how 
and in what Form the faid Will might be lawfully executed and 
performed. Whereupon all the faid Judges., &c. being called 
into the Exchequer-Chamber, after the Opening of this Re- 
' folution to them^ the faid Will was redde from the Beginning to 
the Ending ; And after the fame was well debated among 


Cromt of England ajferted, &c. 1 8p 

tUm^ It was deliver d into their Hands to be farther conjiderd 
accordingly : Who eftfines ajfembling tbemfehes together for 
that Purpofe^ and weighing the Will and every Fart of it^ as 
appertain d J repaired together to the Lord Prote&our^ and other 
the Coexecutours ; and then by the Mouth of Sir Edward 
Mountague declared^ they had throughly conjiderd the faid 
Wm^ and with oon Confent and Advice delivered their Opinion^ 
how that Part of the Will then in queftion, miglit be 
executed^ &.C. 

O N the 8th of March following, as an Inftance of 
their great Care and Concern for this Wtll^ the Lord 
Prote&our and Council thought convenient^ that the Laft Will 
of their late Sovereign Lord deceafed^ remaining fiill in the 
Cufiody of the Earl 0/ Southampton, Jhould for the morefafs 
keeping of the fame^ be bejiowed in the Treajury of the Exche- 
quer ; and thereupon did give Order to the Lord Great Ma- 
jier^ for finding for the Jame^ which was done accordingly ; 
Vpon Receipt whereof about Ten of the Clock in the Forenoon^ 
in a Cafe jealed^ it was firji opened^ and eftfones Jealed^ and 
appointed to be kept till the next Day ; at which time it was or- 
der d to be deliver d into the faid Treafury by the Hands of 
Sir John Godfalve Knt. to the Cufiody of the Officers of the 
faid Exchequer. 

Signd, E. Somerfet, T. Cant. W.St. John, J. RufTel, 
J. Warwick, Anth. Brown, Ant. Denny, W. Herbert. 

Wednefday the 9th of March. According to the former 
Order ^' this Day about Nine of the Clock in the Morning, the 
lafl Will of our faid late Sovereign Lord deceafed^ was deliver d 
by the Hands of the Lord ProteBour^ in prefence of the reji of 
the Council, to Sir John Godfalve Knt. who repming with 
the fame to Weftminfter, and bejiowing in the Place of the 
Treajury^ where he alledged the Lafi Will of Henry V[\. to 
remain^ brought for Tejiification of the Delivery thereof a Bill 
written in Parchment., fubfcribed with the Hands of Thomas 
Danyel, William Walters, and John Lambe, Officers of 
the faid Exchequer. Thefe certainly are fuch Marks of 
Refpedt and Reverence, as could not poffibly be paid to 
a Will., the Validity of which was in the leaft fufpe- 

In the Year I54-9' ^^ng Edward VI. having been 
conveyed by the Duke of Somerfit to Windfor^ by Vio- 
lence, as was pretended ; the reft of the Privy Council, 
remaining in London^ wrote a long Letter of Complaint 

C c c to 

I^o The Hereditary Right of the 

to the King, againft the faid Protedor, dated 19th OHo' 
her', in which were the following PafTages : We truft^ 
that your Highnefs of your Qcodnefs will^ without any Jea^ 
loufy or Sufpicion^ think that mofi expedient^ both for your 
own moft Royal Perfon^ and all your Subje^s^ that by the 
Body of your Council may be thought expedient ; to whom^ 
and to no one Man^ your Highnefs mofi graTje Father appoint' 
ed^ by his Lafl Will and Tefiament^ the Care of your Ma^ 

jefiy^ and all your mofi rreighty Affairs. For the End 

of thU Matter touching the Duke of Somerfet ; if he haue 
that Refpe& to your Majefiys Surety^ that he pretendeth ; 
if he haTJe the Conjideration of his Duty to God^ that his 
Promife and Oath requireth ; if he have that Remembrance 
of the Performance of your Majefiys Father's Will^ that 
to the Office of a Good Executowr appertaineth^ ike : Let 
him firfi fufier us to be refiored to your Majefiys Pre* 

fence^ &.C. The ProteHourJhip and Governance of your 

mofi Royal Per/on^ was not granted him by your Father s 
v_ Will ; but only by Agreement^ firfi amongji iis the Execu^ 
tours., and after of others ; Thofi Titles and fpecial Trufi 
was committed to him during your Majefiys Pleajure^ and 
upon Condition he Jhould do all things by the Advice of 
your Council., 8cc. 

Subfcribed by the Lord Chancellour^ the Lord Great Ma* 
fier^ tU Lord Privy Seal., the Lord Marquis of Northamp- 
ton, the Lord Great Chamberlain^ the Earl of Shrewsbury, 
, the Earl 0/ Southampton, the Lord Wentworth, Mafier 

Treafurer, the Mafier of the Horfe^ Mafier Vice-Chamberlainy 
Sir John Gage, Mr. Secretary Petre, Sir Edward North 
Lord Chief Jujiice., ^/V Ralph Sadler, 5/V John Baker, Sir 
Edward Wotton, Mr. Dr. Wotton,5/r Richard Southwell, 
Sir Edmund Peckham. 

I N the 4th Year of this Reign Stephen Gardiner Bilhop 

of Winchefier was brought into Trouble for fome Mifde- 

meanours laid to his Charge ; in which Profecution the 

(y)Thefein- following (j ) Interrogatories, among many others, were 

ITfZAn, put to the Lords of the Privy Council, ttrc. 

fillers to them I . Whether you know., or have heard fay ^ that the late King 

fomimlhe of famous Memory^ willed him the faid Bijhop 0/^ Winche- 

firft Engiiih (ter, no more to be of the Privy Council with the Kings Ma* 

■FoxV Aas j^fiy our Sovereign Lord that now is ; and omitted and expref" 

Md Uon. ly Yefufed to have him named among other Councellours in his 

Tejiament., to be of the Council aforefaid. 

a. Item, 

Croviu <?/ England ajferted, &c. i^i 

0. Iterri) Whether ye know or haue heard fay^ that the faid 
Bi/hop^ being aforenamed as an Executour in the Tefiament of 
the faid late King^ was a little before his Death^ at his Deck* . 
ring of his Lafi WiU^ put out by his Highnefs^ and fo by him 
refufed to be any of his faid Executour s^ &c. 

T o thefe Interrogatories the Lord Faget anfwer'd as 

(z) Touching the late Kings putting the Bi/hop of Wln^ (i) ]. Fox, 

c\\d\tvout of his Teftament ; it is true^ that upon St. Ste- '^^''^P^^'^' 

phenV Day at Nighty four Tears now paji^ his Majejly ha- 

ojing been "uery Sick, and in fome reril^ after his Recovery 

forthwith called for the Duke of SomerfetV Grace^ for the 

Lord Privy Seal., for my Lord of Warwick., for the late Ma- 

Jier of the Horfi., for Mafier Denny, for the Ma§ter of the 

Horfe that now is^ and for the faid Lord Paget, at that Time 

his Secretary : And then willed Mafier Denny to fetch his 

fefiament. Who bringeth forth firfi the Form of a Tefia- 

ment., which his Majefiy liked not^ after he heard.^ f'^y'if^gt ^^^^ 

was not it, hut there was another of a latter Making.^ written 

with the Hand of the Lord Wriothefly being Secretary. Which 

when Mafier Denny had fetched.^ and he heard it.^ he feem^d 

to marvaile^ that fome were left out unnamed in it., whom he 

faid he meant to have in., and fome in^ whom he meant to have 

out; and Jo bad the faid Lord ^agtt^ in the Prefence of the 

forefaid Lords., to put in fome., that were not named before.^ and 

to put out the Bi/hop of Winchefter'j Name., which was done. 

And then after his Pleafure declared in fundry Things., which 

he caufed to be alter d., and entered in the Will ; his Majejly 

came to the naming ofCouncellours Ajifiants to his Executours, 

Whereupon the faid Lord Paget, and the others., beginning to 

name my Lord Marquis o/'Northampton, my Lord of Arun- 

del, ani the refi of the Council., not before named as Execw 

tours ; when it came to the Bi/hop of Winchefter, he bad put 

him out., faying., he was a Wilful Man., and not mete to be a- 

bout his Son., the King s Majefiy that now is. Whereupon we 

taffed over to the Bi/hop of Weftminfter, whom his Majefiy 

bad put out alfo ; faying., he was fcholed., or fuch like Term., by 

the Bi/hop of Winchefter. And fo paj/ing unto the refi., he 

admitted all of Council without Stop., faving one other Man^ 

at whom he made fome Stick., but neverthelefs Upon our Suites 

relented ; and fo he was named as a Councellouri This all 

done., the faid Lord Paget read over to his Majefiy., what was 

written^ ani when he came to the Place of Councellours., reading 


ipi 7he Hereditary Right of the 

their Names^ he began to move the King again for the Bijho^ 
of Winchefter ; and the reji then prejentfet Foot in with him^ 
and did earneftlyfue to his Majefty for placing the faid Bi" 
/hop among the Councellours ', hut he would in no wife he en- 
treated^ faying^ he mawelled what we meant^ and that all we 
knew him to be a Wilful Man. 
W J-F^ The Duke of Somerfet like wife (a) depofes, That 
p.Vip. ' Henry VIII. would not fuffer the Bijhop o/'Winchefter to be 
named as Executour or Councellour in his leftament^ tho mo- 
ved to it by Sir Anthony Brown, the Duke his Grace^ the 
Earl of Warwick, the Lord Privy Seal^ the Lord Paget, 
Mr. Herbert, and other being prefent. 

The Earl of Wiltjhire High-Treafurer of England^ 

(b) J. Fox, being examined, (b) depofeth, That he was prefent at 

ibid. p. 820. ^^^ Q^,ning of the late Kings Majefty s Will, and found not 

the Bijhop 0/ VVinchefter named there, either among ft the Exe* 

cutours, or Councellours. 

{e) J. Fox, Cuthbert Bifhop of Durefme, being examined, (c) depo- 

1 lip. 29. ^^^^^ 2"/6^t he did not know, that he himfelfwas named Exe* 

cutour, unto fuch time, that the King was dead : Nor did 

not know, that the Bijhop of Winchefter was left out, till he 

heard the Teftament redde, after the King's Death. 

From which Paffages it is obfervable, Firft, That 
the Will mention'd in thefe Depofitions, in which the 
Bifhop of Winchefter % Name was omitted, was that very 
Will, which was executed as the LzfkWill of King Hen^ 
ry VIII. Secondly, That King Benry VIII. for above a 
Month before his Death, took great Care in fettling this 
Will, in a very deliberate manner ; for it appears from the 
Lord Paget's Depofitions, that he fent for that particular 
Copy of it, which he beft liked; that it was read over 
to him, and feveral of his Privy Council; and that he then 
declared his Pleafure in fundry Things, which he caufed to be 
altered, and enter d into the Will; And laftly, that all thefe 
Alterations were read and approved of by him. 

B u T if after all, this Will was no better than a Forge^ 
ry, how came Stephen Gardiner Bifliop of Winchefter, a 
Perfon of great Experience, Knowledge, and Sagacity, 
who was difgracefully excluded out of the Number of the 
Executorsy, and CounceUors, and therefore would have been 
pleafed with an Opportunity oF invalidating the Will, if 
It was poflible ; how came that Bifhop, I fay, inftead of 
urging any Objections again ft its Authority, (which he 


Cro^n of England afferted, &lc. 1^3 

was fufficiently provoked to doj to prefurae to appeal . 
to this very Will, againft the Power exerciied by the 
Duke of Somerfet as Prote&or ? Which yet it is very evi' 
dent, he does, in the Place cited in the (d) Margin. 

Lastly, When Archbifhop Cranmer was earneftly 
folicited to fubfcribe to the Order of Succeffion appoint- 
ed by Edward VI, we are(e) aflfured, he refufed to do it 
for fome time, upon this only Reafon ; 'viz. becaufe he 
hadfwom to Henry VIII.V Will', to which the reft of the 
Privy Council return'd no other Anfwer, but this ; That 
they had done the fame^ and had as tender Confciences a& him- 
feif. A good Proof, that neither the Archbijhof^ nor any 
other of the Frivy Council knew, at that time, of any juft 
Objedion, that could be made againft the Will of Hen- 
ry VIII; for it is not to be imagined, fuch an Opportu- 
nity would have been neglected, of removing his Graces 
Scruples, had it been then known, that the faid Will 
was liable to any reafonable Exceptions. So that we 
have the fulleft Evidence that can be defired, that du- 
ring the whole Courfe of King Edward\ Reign, this Will 
was efteemed of unqueftionable Validity; at leaft I 
may venture to fay, there is nothing appears, either in 
the Records, or Hiftories of thofe Times, that can in the 
leaft countenance the Sufpicion of its wanting any of the 
Requifites of a Legal Will. 

King Edwards Death was no fooner known to Queen 
Mciry.^ but ftie (f) claims the Crown, as well by the Te- 
fiament and Lafi Will of her dearefi Father.^ as by AFi of par- 
liament : An Error ftie could not poffibly have fallen into, 
had either her Friends, or her Enemies entertained the 
leaft Jealoufy of her Father's Will. And the Truth is, 
if any Controverfy ever arofe upon this Subjed: ; or it 
became a Matter of Doubt, in the Courts of Judicature or 
elfewhere, in any Time of this Reign, whether Hen- 
ry Vlll.'s Will was genuine and valid ; our Memoirs and 
Hiftories are extremely defective, in concealing fo im* 
portant a Piece of Knowledge from us. 

W E do not find indeed, that Queen Elizabeth did fo 
much Honour to her Father's Will., as publickly to found 


((i) ]. Vaxs AEis and. Monuments, \Ji (f) See her Letter frOm Kcningliall w, 

Engl. Edit. p. 795. Norfolk, to the Privy Council. |. FoxV" 

CO ]• StrypeV Memorial of Archhijhtp AUs and Monuments, and Holinftiead'i* 

Craijmer. Chron. p. 1084. 

D d d her 

I jp4 The Hereditary Right of the 

her Right of Succeffion, in any Meafure, upon it: But 
we are well alTured, that ibme of her beft and mod 
knowing Subjefts were of Opinion, that her Title from 
it deferved very well to be infifted on; which fufficient* 
ly demonftrates, that the Authority of this Will was then 
thought very good and eifedual. Bilhop Jewelh Tefti- 
mony, I believe, will be admitted, as credible for this 
Purpofe ; which may be found in his View of a Seditious 
 Bull^ (p. 1 3.) in the following Words i Was not the Crown 
of England due to Queen Elizabeth by Inheritance^ and by 
SucceJ/ion^ and by the Laws of this Realm ? Did not her Fa- 
ther warrant it to her by Will^ as to his Daughter? Did not 
Queen Mary, by ezprefs Words^ learn it to her^ as to her Si- 
Jler ? Did not the whole Nobility of the Realm confirm it ? Did 
not Queen Mary'j Bifhop kneel down before her^ and acknow- 
ledge her to he their Natural and Lawful Queea^ &c ? 

But notwithftanding all thefe Evidences, the Doctor 
tells us, that many and weighty Objedions were long 
fince made againft this Will^ which to him feem unan- 
fwerable. Let us now therefore confider thefe mighty 
Objedlions, and fee whether they fo well deferve his good 
Opinion. It is not pretended, that any of thefe Obje- 
ctions appeared publickly in Writing, till Queen Eliza^ 
heth\ Reign ; and even then, I believe, it will not be 
found, that any Englijh Subjeft had the Confidence to 
give them Countenance. The Truth is, the Scotch Na- 
tion was highly offended with this Will, for Excluding 
the IfTue of their Queen Margaret from the Succeffion to 
the Crown of England; and therefore, when they found 
the Right of the Houfe of Suffolk openly aflerted, 
<^) 7fe5fl»i which was done by one (g) John Hale ^ in a particular 
r S"'" Difcourfe written exprefly for that Purpofe ; they thought 
?5^3- it then became their Zeal for the Intereft of their Royal 
Family^ to enquire into the Validity of Henry VlII.'s Will,, 
upon which the oppofite Title wholly depended : And 
the Iffue was, that at length they fancied, they had made 
very happy Difcoveries, which would be fufficient en- 
tirely to overthrow its Authority. What Arguments they 
thought proper to make ufe of upon this Occafion, they 
were very forward to publifh ; and we meet with them 
frequently in feveral printed Books of Queen Elizabeth^ 
Reign ; and therefore, I confefs, it was Matter of Ibme 
Surprize to me, to find fo knowing an Hiftorian as the 

it Bilhop 

Croiv/i of England afferted, &c. 15^5* 

Bifhop of Salisbury^ reciting the common Obje6tions a- 
gainft this Will out of a Manufcript Letter, as a Secret, 
which he alone had the Happinefs to difcover, (/5))and(^) Hifi.Rc^ 
which had been hitherto unknown : Whereas there is not one i.'^b.''3. p!" 
Circumftance in all that he has faid upon this Occafion, 34p- 
but has been more fully urged and reprefented in the 
Englijh and Latin Editions of the Defence of Mary Queen 
of Scots, (i) written by John LeJIey Bifhop of Roffe^ by (i) The Eng- 
the Jefuit Parfins in LeicefterV Commonwealth^ and hi^^^^^^^i^i'^^m 
Conference about the Succejfion ', not to mention John Cohnlts 8vo. Anno 
Palinode^ and another Pamphlet, entituled, A Treatife'df„^'''t^^J'' 
declaring and confirming againft all ObjeBions^ the Jufi Title^^^'^^^'^ 
and Right of thmoft excellent and worthy Prince K. James VI, iheLs'^m, 
printed, as I guefs^ not long before Queen Elizabeth\f^^^^^° 
Death. Thefe Books being thus publiQied in that Queen's 
Reign, and difperfed throughout the Kingdom, are a 
fufficient Proof, that his Lordfhip had no Need to have 
Recourfe to a Manufcript Letter, to furnifli himfelf with 
Arguments againft King Henrys Will. What thefe Ar^ 
guments were, and how well they deferve that Name, 1 
now proceed to examine : And though the Dodor has 
obliged me to confider them Only,, as they lie in Leithing- 
tons Letter, and Sir Thomas Craig s Book of the Right of 
Succeffion ; yet I (ball be fo juft to his Caule, as to give 
them all the Advantage they are capable of, from the 
Books before-mention'd. 

I. It is fiiggefted by Leithington^ and Sir Thomas 
Craig^ that this \Vill of Henry Vlll. was not figned with 
his own Hand^ but only with his Stamps and therefore was 
not good in Law ; for the A&s of Parliament^ which im- 
power'd him to limit the Succeffion by his Laft Will and 
Teflament^ obliged him to fign it with his own Hand; 
which not being performed, the Will was of no Autho- 

T o this I anfwer, Firfi^ That it cannot well be thought 
the Intention of thofe A6ts of Parliament, to reftrain the 
King from figning his Will with his Stamp : And, Second- 
ly^ That the Law looks upon any thing that is figned 
with the King's Stamps as of equal Authority with that 
which is figned with his Hand. 

Firft^ I fay, that it cannot well be thought the Intent • 
tion of thofe Ads of Parliament, to reftrain the King 
from figning his Will with his Stamp. For from what 


1^6 The Hereditary Right of the 

Caufc foever it might proceed, it is certain, that before 
the .Faffing of this laft A61 of the Succeffion, the King 
generally made ufe of his Stamp upon all Occasions ; ana 
whatever was thus figned, was univerfally receiv'd, and 
allowed to be efFedual to all Intents and Purpofes, as if 
the Letters of his Name had been particularly and ex- 
prefly formed by his own Hand. I have feen the Court' 
cil-Books of the :{9d and :?4th Years of his Reign, in 
which a great Number of Commiffions and Warrants 
are mentioned to have had no other Authority, but his 
Stamp ; and it is well known, before that time he feldom 
gave himfelf the Trouble of ufing a Pen. It was un- 
doubtedly therefore more for his Eafe and Satisfaction, 
to be left ftill to his Liberty of making ufe of his Stamf^ 
as he had accuftoraed himfelf to do ; and we are well af- 
fured, his Parliaments had too much Complaifance for 
him, to crofs him in any of his Inclinations. 

But, Secondly^ The Law makes no Diliinftion be- 
tween a Will figned with d. Stamps and the fame Perfon's 
own Hand ; but looks upon the former as of equal Au- 
thority with the latter. This we are fure is trite in the 
Cafe of private Men ; and that it alfo holds good in the 
Queftion now before us, we have the Judgment of Hen- 
ry Vlll.'s laft Parliament ; for the Commiffion, by which 
the Duke of Norfolk^s Attainder was pafled, was fign'd 
only by the King's Stamp ; and yet the Ad: of Parliament, 
which enabled the King to pafs A6ts by Commiffion, 
(k) fays exprefly, that it Jhould be Jignd with his Hand. 
This plainly fhews, that whatever was fign'd by the 
King's Stamps was, in the Opinion of that Parliament, 
figned with his Hand ; and therefore the Journal of Par^ 
liament^ when it mentions that Commiffion, fays, it was 
figned (/) Signo manuali RegLs. It may indeed be fuggeft- 
ed, that for this very Realbn the Attainder of the Duke 
of Norfolk was reverfed in the Firft Parliament of Queen 
yWary's Reign ; z'iz. {m) becaufe the Commiffion, by which 
that Attainder was pafled, was figned by the King's 
Stamps and not his Hand. But we have a later and more 

(}) 33 Hen. 8. c.ii. (m) Yide Journal Pari !»«• Maria:, 

(/) Les Lettres Patents purport ]e am Bijhop of Sarum'x Hiftory of the Rc' 

fiene Henry Rex Manuel del Roy. Vide formation. Part 2. p. 257. B. 2. and Dy- 

DyerV Reports, Term. Mich. An° 1°° erV i?f/w//. Term. Mich, i"" Maria. 


Crown of England ajferted, &c. 197 

remarkable Judgment given in Parliament, which may 
juftly be thought fufficient to determine this Controverfy ; 
and that was in the Cafe of the A6t, which appointed the 
Abjuration Oath, and alio the Malt Fax, (if I miftake not) 
v/hich were both paffed by a Commjffion figned only by 
Iking Williams. Stamps the Day before he died. Will th^ 
Dodor now fay, thefe Ads were of no Authority, and 
that whatever was done purfuant to them, was contrary 
to Law ? I am perfuaded, he will not own this to be his 
Opinion. But if he will allow the Stamp of a King to be 
of fufficient Authority in a Commiffion of this High Na* 
ture; he will be very hard put to it: to prove, that it is 
of no Force in the prefent Queftion. 

2. 1 T is faid, this Stamp was not fet to the Will by the 
King himfclf, nor by his Order ; but that after the King 
had loft the Vje of his Reafon^ or was paji Senfe and Memory, 
one William Clark put the Stamp to it ; which was acknoW" 
ledged by the faid Clark openly before Queen Mary and her 
Privy Council^ and alfo the Parliament. And this was like-- 
wife attefied in Parliament in Queen Mary'j Time^ for the Re' 
fiitution of the Duke o/' Norfolk, by the Lord Paget. This 
we find affirmed in Leithingtons Letter, and Sir Thomas 
Craig's Book of the Succeffion ; and the (n) Bifhop of c») ^fap 
Roffe is not only pofitive in thefe Points ; but adds fome %,^^^f^f 
farther Particulars in the Paflage immediately following. Q»ee» Ma- 
We fay then^ that the King never figned the pretenfed Will with ]i^Crtn 'of 
his own Hand ; neither do we fay it by bare Hear fay ^ or gather England, 
it by our former Conje^ures and Prefumptions only; but by good p.^pg^ 
0nd able WitneffeSy that avouch and jufiify of their own certain •^"^'- ^^' 
Knowledge^ that the Stamp only was put to the faid Will^ and 
that even when the King himfelf was now dead or dyings and 
pa(i all Remembrance. The Lord Paget being one of the Privy 
Council with Queen Mary, of his own free Will and godly Mo^ 
tion^ for the Honour of the Realm^ for Reverence of Truth and 
Jufiice^ tho in the Fa^ himfelf culpable.^ and in a manner there- 
to by great Authority forced; did firji of all Men difclofe the 
Matter y firJi to the faid Council^ and then before the whole Par^ 
liament. Sir EdwztdMount^igue aljo.^ the Chief Jullice^ that 
teas privy and prefeitt at the faid Doings.^ did confefs thefame^ 
as well before the Council.^ as before the Parliament. Tea.^ Wil- 
liam Clark, afcribed among other pretenfed WitneJJes^ confejfed 
the Premifes to he trewe^ and that himfelf put the Stamp to the 
faid Will^ and afterward purchafed his Charter of Pardon for 

E e e the 

1(^8 The Hereditary Right of the 

the [aid FaEi. Vpon which De^ojitions well and advlfed- 
ly weighed and ponder d^ Ql^^^n Mary, with the Aduice 'of 
her Council^ to the Honour of God and the Re.ilm^ to the 
Maintenance of Trewth and Jujiicejand the Rightful Succejfion 
of the Crown , for the ef chewing of many fowl Mifchiefs^ 
which might upon this Forgery enjue^ caufed the Record of the 
faid forged Will^ remaining in the Chancery^ to he cancelled^ 
defaced^ and aholijhed^ as not worthy to remain among the trexi> 
and Jincere Records of this noble Realm. And to the fame 
Purpofe writes the Author of the Treatife^ Declaring the 
Right and Title of King James VI. to the Crown of England, 
which I had before mention 'd. Now it mufl: be confef- 
fed, thefe Facis are confiderable, and would be of great 
Weight, in putting an End to this Difpute, could they 
be well proved: But I fhall now fhew, that fome of 
them are falfe, and the reft depend upon too flight an 
Authority to be credited. 

Firfi^ I fay, fome of thefe Pa flages, which are related 
as certain Matters of Fa61-, are falfe. It is not true, that 
Henry VIII. was dead^ or dyings or pa ft Senfe and Memory^ 
when the Stamp was fet to his Will : For this was done 
on the Thirtieth of December^ which was a full Month 
before he died ; and it appears from the Lbrd Paget^s 
Depofition, (before cited) that there was no Part of this 
Will., which had not been duly and maturely confider'd 
y . ) „n by the King, while he had the perfedt life of his Under- 
<■ ftanding, four Days before it was fign'd. 

Secondly., That the Stamp was fet to this Will by one 
William Clark, without the King's Order^ Sec. is faid with- 
out any manner of Proof by thefe Writers. And fure-- 
ly, in a Matter of this Confequence, they will not take 
it ill, if their bare Word is not admitted for Evidence. 
They tell us indeed, that my Lord Paget declared before 
the Council and Parliament, in the Eirft of Queen Ma- 
ry., upon the Occaiion qf the Refiitution of the Duke of 
Norfolk., that the Stamp was fet to this Will by William 
Clark., &c. But what Evidence is there for this ? We have 
neither Record, nor Hiftory, no printed fiook or Ma- 
nufcript, befides what has been written by Gentlemen of 
the Scotch Nation, that affirms any thing of this Matter. 
What Occafion could my Lord Paget have, to mention 
theP^/7/of Henry Vm., when the Duke of AW/o/;^'s At- 
tainder came under the Confideration of the Parliament ?- 


Crdivn of England afferted, &c. ipp 

Wliat Relation had they one to another ? Befides, this 
Lord was the firft, that produced this WiW^ and read it 
in open Parliament, as undoubted and genuine: He 
fwore, as an Executor, to perform it ; and all along 
adted in that Truft, as one that believed it of unque- 
ftionable Authority ', and all this I have proved from un- 
conteftable Records. Is it reafonable therefore to believe, 
that a Perfon of his Quality and Charader, would have 
a6ted fo bafe and diflionourable a Part? Does it any 
where appear, that he ever retraded his firft Evidence ? 
Or if he did, ought not a Matter of fuch Confequence 
to be as well attefted, as what he had declared before in 
Favour of the WiW? But nothing Satisfactory in this re- 
Cped has yet been produced : Indeed the Adverfaries to 
this Will have been bold enough to infift upon fuch a 
Retradation of the Lord ^aget-^ and have alio been vain 
enough to exped, it fhould be admitted as an undoubted 
Matter of Fad : But the World is not yet fo complai-c 
lant, as to give Credit to the bare Affirmations of a Par- . 
ty, iupported by no plain and legal Proofs ; and there- 
fore till we are better aflured of the Truth of their Afler- 
tions, we muft beg Leave to look upon them as unwor- 
thy of any Regard or Countenance. Surely, fuch impor- 
tant Tranfadions, had they ever had an Exiftence, might 
have been demonftrated from fome authentick Inftru- 
ments, preferv'd among the publick Records ; and it is 
not eafy to imagine, that the '^journals of Parliament, and 
Council' Books, fliould pafs them by without any manner 
of Notice ; and yet we know, that nothing of this Na- 
ture is to be found in thofe Writings. After all, if it 
could be proved, that the Lord fagtt did give in the 
Evidence pretended, in Queen Marys Time, it may ve- 
ry well be a Queftion, whether this could be of Weight 
enough to overthrow the Credit of his former Depoii- 
tions, in Favour of the faid Wi\\\ For the Biihop of 
jRo^ himfelf {o) confefiTes, That if any fuch Witnefs^ or oj Deface 
Executor^ had upon his Oath before a Lawful Juige^ depojed^ uLy^Jen 
of hiA own certain Notice and Knowledge^ that the faid Will was "/ s<:o", ^ 
figned with the King^s oven Handy in cafe hejhould aftewards b. 2. p. lo'i. 
contrary and revoke this hisjolemn Depojition^ it ought not lightly 
to be difcredited^ for any fuch Contradi&ion afterward hap' 
pening. But I have fully ihewed, that this Lord Paget 
did in King Edward VI.!s Reign, upon feveral publick 


ZOb The Hereditary Right of the 

Occa(ions, manlfeft his Belief, that Henry VIII.'s Will 
tvas good and genuine. 

What has been faid againft this imaginary Retradla- 
tion of the Lord Taget^ may equally lerve, as an An- 
fwer to the Surmife, that William Clark^ and the Lord 
Chief Juftice Montague^ did like wife appear as Witnefles 
againft this Will: For all this is affirmed without any 
manner of Proof ; and is a Piece of Hiftory no where to 
be met with, but in thofe few Scotch Writers abovemen- 
tioned ; who were indeed truly worthy of Commenda- 
tion, for the Fidelity and Zeal they (hew'd in their 
Miftrefs's Caufe ; but were undoubtedly impofed upon 
in thefe Particulars. For furely it is a very difhonoura> 
ble Reflexion on Sir Edward Montagues Memory, to fay, 
he rejedted the Authority of this Will in Queen Mary\ 
Days, who was fworn to it in Edward VI.'s, and took 
Care to fee it executed ; and alfo upon a ferious and de- 
liberate Perufal of it, with the reft of the Judges, gave 
his Advice, how fome particular Parts of it might beft 
be performed, as 1 before obferved out of King Edward\ 
Council Book. Thefe Actions were manifeft Indica- 
tions, that he did not then fufpeft the Authority of King 
Henry sWilly unlefs we are to fuppofe, he a6ted againft 
his Opinion and Confcience, which we ought not to be 
eafily prevaiPd with to believe. 

After all, I am fenfible, I have not yet fatisfied Do- 
Cfj) Dejme, Q-Qj. Higden ; for he (p) tells us. That what Leithington 
fays^ carries the greater Weight ; becaufe he appeals for the 
Truth of it^ not only to Sir William Cecill, the Mlnifier of 
State to whom he writes ', but to feveral Noblemen then alive^ 
who could not but know^ whether what he affirms to ham been 
done in open Parliament twehe Tears before^ was really done or 
not^ &c. Admirable Reafoning ! f doubt not but Sir 
William CeciU^ and the Noblemen appealed to in that Let- 
ter, did know, whether what was affirmed there was 
true ; but certainly it was no Argument it was To, be- 
caufe Leithington might eafily have been confuted, if it 
had been otherwife : For furely Men may be confident 
in their Miftakes, and aflert Things boldly againft 
Truth, and yet be fo defpifed, as to be thought unwor- 
fliy of a Confutation. 1 am confident, this is the true 
Reafon, that fo little Notice haS been hitherto publifh'd, 
of the many notorious Falfhoods^ that fill ajmoll every 

t Page 

CroTon ^jf England ajferted^ &c. ioi 

Page of the Reigns of King Charles II, and King James 11^ 
in the Third Volume of The Complete Eifiory of England : 
And yet, for fear that the eflabhfh'd Reputation of 
the Hlftories pubhfh'd with it, in the Firft and Second 
Volumes of this Colledion, and the Bulk of the Whole^ 
confifting of three large Volumes in Folio, fhould gain 
it any Credit in the next Age, as much as it is defpifed 
in this ; and what is now known to be wholly owing to 
the general Contempt of the Book, Qiould then by fome 
Dodor Higden be improv'd into an Argument of its Au- 
thority ; there is anEzamen Hifioricum of it now preparing 
for the Prefs, by a (^) great Man, that had himfelf no 
inconfiderable Share in the Publick Affairs of the Time 
he writes of, and was an Eye-Witnefs of many of the 
Falfhoods publifh'd in this Third Volume of our Complete 
Hiftorian. But to return to Dodtor Higden. How does 
he know, that Sir William Cecill^ and other Noblemen ap- 
pealed to, did not fhew Secretary Leithington his Errors 
in the feveral Points infifted on in his Letter ? I rather 
believe indeed, that they did not do him the Honour to 
undeceive him in thole Particulars : For Queen Elizabeth 
and her Minifters thought it a Piece of Wifdom (for 
many Years of her Reign) to conceal her Refolutions a- 
bout her SuccefTor ; and therefore none about her were 
permitted to enter into Debates about the next Title after , 
her Deceafe. But however that might have been, it is 
efficiently evident, that Secretary Leithington was mifin- 
formed in fome Particulars, which he mentions in his 
Letter ; for when he leagues it to fuch^ as are to claim after 
the Ijfue (?/" Henry VII, to lay in Bar the Polygamy o/Charles 
Brandon Duke of Suffolk ; I muft take the Liberty to 
charge him with a fcandalous and unpardonable Defama- 
tion of that Noble Peer : That this Duke of Sufolk had 
another Wife living at the Time of his Marriage with 
Henry VIII.'s Sifter, was indeed a Calumny too much 
credited by the Friends of the Stuart Family, in the Be- 
ginning of Queen Elizabeth^ Reign ; but it was fo 
groundlefs a Calumny, and fo eafily confuted, that the 
World was foon convinced of their Error, in giving it 

(^) The Learned Atthor of the Re- World mth a Specimen of the Unfaithfiil- 

flexions on fome PalFages in Mr. Le nefs and Prevarications of this Pretended 

Qfrc's Life of Mr. John Locke, in the Complete Hiftorian. 
Eieface to which he has already obligd the 

F f f any 

202 The Hereditary Right of the 

any Countenance; Infomuch that when the BIfhop of* 
Rojfe wrote his Defence of Mary Queen of Scots and her Ti- 
tle^ he was afhamed of fo notorious a Falrtiood, and 
therefore refufed to allow it any Place among his Ob> 
jedions againft the Houfe of Suffolk ; which, had the 
Story been true, would have been of great life and Ser- 
vice to him. And it deferves to be taken Notice of, that 
this Slander was never after revived by any Writer of 
Queen Elizabeth's Reign, (as far as I have been able to 
difcover) til] Father Farfons the Jefuit publiQi'd Leicefier's 
Commonwealth^ and his Hifiory of the Succejfion ; in which 
Piece, he thought it became him to omit none of thofe 
fcandalous Afperfions, which might help to create an 
. Averfion to the Families of Scotland and Suffolk, that he 
might the better advance the Intereft of the Court of 
S^ain. In our Days indeed an eminent Writer has ve- 
ry furprizingly, by an unfortunate Slip of his Pen, re- 
fcued this Calumny from Oblivion, and given it a frelh 
Currency in his celebrated Hiftory. / have feen it often 
affirrnd (fays this great {r) AuthorJ in many Letters and 
Writings of that Time^ that all the Iffue of Charles Bran- 
don was illegitimated J Jince he was certainly married to ons 
Mortimer, before he married the Queen of France ; which 
Mortimer liijed long after his Marriage to that Queen ; Jo 
that all her Children were Bajiards. Some fay he was divor- 
ced from his Marriage to Mortimer ; but that is not clear 
to me. 1 know not how it came to pals, that his Lord- 
fhip's ufual Tendernefs for the Honour of Henry VIII. 
did not a little reftrain him from fo readily giving his 
Affent to fo fufpicious a Piece of Hiftory ; for undoubt- 
edly it may be reckon'd among the great Blemifhes of his 
Reign, that he matched his Sifter to a Perfon, who had ^ 
Wife then living. Befides, had his Lordfhip been at 
Leifure to reflect thorowly upon this PafiTage, before it 
fell from his Pen,' he would undoubtedly have found it 
difficult to believe, fo remarkable an Occurrence could 
have been, either a Secret to all our Englijh Writers, or 
omitted by them, had it been known. And, Lafily, It is 
Pity his Lordftiip did not confider, how many {s) Noble 

(r) Bifhop of Sarum's Hiftory of the (s) It may not he unacceptable to the 

Reformation, Part 2. B. i. p. 176. See Reader to be informed, jrht the principal 

alfo Part 2. B. 2. p. 236. cf that Hi- Noblemen are, rfho have the Honour to bi 

ftory. defcinded from the Duke of Suffolk, and 


Cron}^n ^/^ England afferted, &c I65 

Families are injured, if what he has affirm'd fliould 
prove untrue ; for it is not to be imagined, they fhould 
be infenfible of the Honour of deriving a Legitimate 
Defcent from tlie Sifter of fo great a King. I proceed 
now to fhew, that I have not without Juftice queftion'd 
this Part of his Lordfhip's Hiftory; which 1 am per- 
lliaded will be done effedually by the following Extradt 
out of a Manufcript Difcourfe, written by Mr. ^ohn Hale^ 
in the Year 156^. 

Againfi thefi Heirs of the French Queen it U ohjeEied^ 
that they were not lawfully born ; hut uerily this is a mere 
.Slaunder^ growen altogether upon Malice^ and no Accufation 
made upon any jufi Prefumption. For 1 befeech you tell me^ is 
it like^ or can any reafinable Man think^ that if Duke Charles 
had had another Wife livings when he married the French 
Queen ; that King Henry would ham confented^ that his Si' 
jier Jhould have receivd Jo great Injury^ that Jhe fhould have 
been kept like a Concubine ? Would his Council have fuffered 
fo great an Infamy to have come to his Majefiy's Stock ? Or 
would the Nobility of the Realme with fuch Triumph have ho' 
noured fo unfawfull an AEi ? Woud the Common People^ who 
many times be ready to fpeak Evill of Well-doings have holden 
their Tongues in jo manifefied Adultery ? Is it iike^ that info 
long time^ that the French Queen and the Duke lived together 
as Man and Wife^ (that was all the Life of the French Queen) 
/he Jhould net have heard of it? Was it pojfible^ that amongejt 
fo many Women^ which dayJy reforted to her^ none would have 
told her of it ? Or is it to be believ'd^ that Jhe^ contrary to 
the Nature of all other Women^ would have been contented^ that 
another Jhould have been Far taker of that Flejh^ which Jhe ac- 
cording to God J Word took only to be her own ? Or can any 
M^n think^ that any Woman can be contented to live in mean 

the French Otiten ; and therefore I fh^ll Duke of Somerftt; yill thcfc are lineally 
here fet dowrTiheir Names in their Order, defcended from Charles Brandon Bule of 
M they eccurr to nty Memory. The firft Suffolk, and the French Queen, by their 
of this Honfe of Suffolk, novp living, is eldefi Daughter Katharine. j4ni it is al- 
the Lord Bruce (Son to the Earl of Ailef- Jo well knorrn, that the Earls of Derby, 
bury) and his Sifter the Qnntefs of Car- for feveral Sucajfions, reciond it as one of 
digan ; then follow the late Earl of Win- the nobleft Inftances of their High Extra- 
chelfeaV Sifter, the Right Honourable He- flion, that they fprung from the Lady 
neage, the prefent Earl of Winchelfea ; Eleonore, yonngeft Daughter to the fore- 
all the Iffue of the Lady Frances, late mention' d Duke and Queen. So that the 
f^ij'countefs Weymouth ; the Earl of Bur- feveral Branches defcended from them, 
lington, and the Jjfue of his Father and would he too numerous to he eaftly called to 
Grandfather ; the Children of the late Dm- Mind, and vcould take too much Rotm to he 
thefs of Queensboiough, and the prefent here mention d. 


Z04 The Hereditary Right of the 

Degree^ when Jhe may he a Dutchefs^ as the Lady Mortimef 
: mi^ht have hen jufily^ if Jhe had been the Dukes Wife ? Sure- 
h there u no Reafon to make any Man to think fb ; then much 
\ lefs to report Jo. But fuppoje.^ that the Duke had had another 
Wife living, at that time he marryed the French Queen ; 
yet forafmuch as He and She were marryed together openly.^ con- 
tinued all their Lives as Man and Wife together^ and nothing 
faid againji them ; and every Man took them for Man and 
Wife ; and that the Lady Frances, and the Lady Elianor 
were not taken to be Bajiards during their Lives : Novo after 
their Death neyther they nor their Children may. by the Laws of 
this Realme^ be accounted Jo. Nee juftum aliquando mor- 
tuum facere Baftardum, qui toto tempore fuo tenebatur 
pro legitime, as appeareth by a Judgement given at Weft- 
minfter in 1 3° Edw. 3"'- 

But for the Declaration of the Truth of this Matter .^ and to 
putt out of the Heads of the People this fond Opinion and Talk., 
which is only moved of Malice^ and comet h not of any certain 
Knowledge ; and encreafed by light Credit without Conjidera^ 
tion ; and mayntained by Juch as no doubt pafs fo much upon 
the Trueth^ as deJirouA to fatisjie their froward Affe&ions. 

Tou Jhall underfland^ that the Duke of Suffolk, Charles 
Brandon, being in the Court^ living Jole and unmarryed^ made 
a ContraH of Matrimony with one Mrs. Ann Browne. 
But before any Solempnization of Marriage.^ not only had a 
Daughter by her., (which after was marryed to the Lord Powis) 
hut alfo brooke Promife with her.^ and openly and jolemply mar- 
ryed with the Lady Mortimer ; which Marriage the fame 
Mrs. Ann Evowne judicially accujed to be unlawfully for that 
the faid Sir Charles Brandon had not only made a Pr^econ- 
traB with her^ but alfo had carnally known her. Which things 
being duly proved.^ and Sentence ofDivorce.^ between the faid 
Sir Charles and the Lady Mortimer, given and denounced^ 
he marryed folemnly the faid Mrs. Ann Browne : At the 
which Marriage all the Nobility were prefent^ and did honour 
it. And afterwards the faid Sir Charles had by the fame 
Mrs. Ann Browne, another Daughter ^ which was marryed 
to the Lord Mounteagle. After this^ the faid Mrs. Ann 
Browne continewed with him all her Life as his Wtfe^ and 
'  dyed his Wife without any Impeachment of the Marryadge. 

After whofe Death.^ King Henry having him in great Favour^ 
intended he Jhould for his better Preferment have marryed the 
Lady Lifle, being a young Mayd.^ an Inheritour. Whereupon 


Crovift of England afferted,^i^Q, lof 

the fatd Sir Qh^v\t% was created Vifioiint Liile * But thai 
Marriadge by reafon of her Touth took no Place. After this 
he was created Duke of Suffolk, about the which Time Lewis 
the French King dyed', and lea'vyng the faid Lady Mary 
{Daughter to King Henry VII J Widoxv ; the fayd Charles 
Duke of Suffolk was fent into France for her^ and with tht 
Cgnfent of Henry VIII. marryed her twice^ firfl fecretly iii 
France, and after openly here in England, (as before is decla> 
ted) and Jo they lived together all their Lives long as Man and 
Wife^ and were Jo accepted and taken of all Parts^ and no Per- 
Jon impugning or gainfaying of thejame ; for there was no juji 
Cauje. After this they had JJfue between thern ; that is^ the 
Lady Frances, and the Lady Elianor. 

Againji whom the Lady Powes, their Bafe Sifter^ in thi 
Time of King Edward VI. alleged Baftardy ; but yetnotwith- 
Jianding that^ they were both by the Laws of the Realme^ and 
by the Canon Laws declared to be legitimate^ and approved to 
he born in Law full Matrimony^ fo as no Man can fay ^ they be 
Baftdrds. And if that they cold, yet at this prejent^ becauje it 
was adjudged for them^ that it was not Jo ; arid aljo for that 
they both be deady and dyed taken as Legitimate ; he ought not 
to be heard by Ofder of any Law in the World^ if he wold ob" 
jeSl it againji them. 

Thus did this Gentleman long fince wipe off the 
Afperfion caft upon th^ Iffue of Charles Brandon.^ and the 
French Queen ; td which it does not appear, that any 
Reply was ever made ; and it certainly had that Effed:, 
that the Birtiop of jRo//e, and others the moft Learned Af- 
fertors of the Title of the Houfe oi Scotland.^ never after- 
wards thought fit to urge this Objedion. Leithington 
indeed, and Par Jons have had fb little Modefty, as to re- 
peat this Calumny, at the fame time that they confefs^ 
they had feen this Difcourfe of Mr. («) Hales ; but nei' («) /« Lei. 
ther of them has pretended to (hew, that he had mifre- fellfrTu 
prefented the Fa£t, or departed in the leaft from Truth ^/<w^ is 
in the Relation of it. E^ j Y 

It may be farther obferved, that Henry VIII. exprefly Haiie,w/Mi. 
provides in his P^//, that the Heirs of the Lady Frances " 
and Eleanor (to whom the Crown was to defcend after 
his Daughter Elizabeth) (hould be lawfully begotten ; a Qua- 
lification, which therefore he may be fuppofed to have 
believ'd, was not Wanting in their Mothers. But if any 
fhould be fo contentious, as to difallow of this Confe- 

G g g quence; 

20^ The Hereditary Right of the 

quence ; or fo difficult to pleafe, as ftill to queftion, whe- 
ther the Legitimacy of the Children of the Duke oi Suf- 
folk^ and the French Queen, is lufficiently proved ; they 
may enjoy their Humour, without any real Prejudice to 
the Iflfue of the Lady Frances and Eleanor^ who had uh- 
doubtedly a good Title by this WiH^ whatever the. Birth 
of their Mothers might have been. 

Another Objediort againft this Will is, That the 
Original had been embezzled^ and was not to be found. This 
is urged by Leithington ; and (x) the Bilhop of Rojfe fre- 
quently challenges the Advocates of the Houfe of Suffolk 
to produce it ', and even Mr. Hales himfelf (y) was of 
that Opinion, that it was deftroyed in Queen Marys 
Time, by the Enemies of the Proteftant Religion. But 
they were all extremely miftaken ; for the (z) Original 
Will is ftill extant, and may be feen in the Cha^ter-Houfe 
at Weftminfter : It was firft indeed repofited, by [a) Or- 
der of Q)uncil, in the Tr^^y^rj; of the Exchequer; where 
it continued till about i8 Years ago it was removed, 
with the reft of the- Records, q^yc. into the Place, where 
they now lie, as a more proper Repofitory for them, 
if 1 am righty informed. In a word, this Original 
Will has been often feen and perufed by able Judges, 
by whom I have been aflured, that the Letters of 
the King*s Name are evidently formed by a Pen ; and 
therefore ftridly and properly by his Hand^ and not by 
his Stamp : They have likewife obferved, that fome of 
the Stroaks of the Letters are plainly uneaven, as drawn 
by a weak and trembling Hand, in the Time of his Sick- 
nefs ; and are manifeftly diftinguifhable from thofe made 
by his Stamp.^ which is prefently difcerned at the firft 
View. I will not prefume to undertake for the Exaft- 
. nefs of this Account, though I have good Reafon to re- 
ly upon it ; but if the Reader has any Scruples, he may 
eafily fatisfy his Curiofity, by comparing the King^s Name., 
as it is at the Head of this Will., with his Stamps ; many 
whereof may be met with in the Cotton^ and other Libra- 
ries about the Town. From whence it is evident, how 
littje the Court of Queen Elizabeth troubled themfelves 

Cx) See his Defence of Mary Oueen C^) -^ true Copy of it may be ftmd ia 

•/Scots, p. 94, 102, io6, 117. B. 2. tif Appendix, N. 8. 

CyJ In his Defence 0/ the Houfe of (a) 1 have before netted thit Order, 

SnSblk, printed in the Appendix, N, 7. p. i8p. 


Croiiin ^/"England ajferted, &CQ. idj 

about theDirpute concerning the Right ofSuaefion in the 
Houfe of Suffolk ; fince they fuffer'd fuch Miftakes to pafs 
upon the People, without the leaft Contradiction, when 
it was in their Power to redify them at their Pleafure. 

Again, we are told by the Adverfaries to this Wlll^ 
that the Witneffes to it were of no QuaHty or Fortune ; 
and therefore not like tb be made ufe of by a Prince up- 
on fuch an Occafion : And they add, that it is no fmall 
Prejudice againft it, that it was never proved in the5pi- 
rhual Court. But thefe are vain, and frivolous Obje- 
ftions ; for of thofe that figned as VVitneiTes, the firft 
was a Knight, three others were the King's Phyficians,^ 
and the rett. Gentlemen that had good Employments a- 
bout the Court; and therefore he gives each of them 
fuch Legacies in his PFiT/, as in thofe Days were not 
thought inconfiderable. As for the Probate of the PFi/?, 
whether or no it was performed according to the ufual 
Forms in the Spiritual Courts^ is a Point of no Moment," 
and therefore not worth enquiring after. It is enough, 
that it was laid before both Houfes of Parliament; and 
that the Executors advifed with the Judges, and other 
able Lawyers about it ; who gave their Opinions, how 
it might be beft executed, as a good and valid Will. Be- 
(ides, this we are afTured, that the Council required the 
Lord Chanceilor to caufe it to be recorded^ and enrolled in Form 
accufiomed; and therefore if any will ftill infift upon it, 
that it ought to have been proved in the Spiritual Courts ; 
it will be expeded, they fhould give an Inftance of 
any Royal Will., that was ever fubje6ted to thofe common 
Forms. , 

Lafily., It is objected, that the Earl of Hertford., and 
Lady Katharine Grey., (eldeft Daughter to the Duke of 
Suffolk) being required to prove their Marriage in the 
Beginning of Queen Elizabeth^ Reign, (b) and a certain (lo Camden 
Time being limited, within which they were obliged to Al'S'iSiT* 
produce their Witneffes, they were not able to do it ; 
and therefore the Arehbifhop of Canterbury proceeded to 
a definitive Sentence, whereby the pretended Marriage 
was declared Null and Void ; and confequently the Ti- * 
tie from this Lady (who was firft in Defcent from Charles 
Brandon and the French Queen) was entirely defeated- 
But this Objedtion does not affed the Derby Family, 
which derives itfelf from the Lady Eleanor the youngeft 


2o8 The Hereditary Rigljt of the 

(c) Dogd. Sifter. Befides, Sir William Vugdale afTures iis, (c) That 
Ba-ott. f^^ Validity of the Earl of Hertford j Marriage was after - 
wards brought to a Tryal at the Common Law ; vchen the Mi- 
nifier^ who married them^ being prefertt^ and other Circumfiances 
agreeing^ the Jury {whereof John Digby of Colfhill in the 
County of Warwick Efq'y was the Fore^Man) found it a good 

T H u s 1 have at large eonfider'd all the material Ob> 
jedlions againft the Validity of Henry VUl^s Will; and, 
if 1 am not too partial to my Performance, I fhall never 
be put to the Trouble of a farther Vindication of it. But 
for the Reader's greater Satisfaction, I have inferted in 
the Appendix to this Uifcourfe, a genuine Copy of this 
Original Will^ and alfo Mr. J. Hale'j Defence of the Houfe 
of Suffolk j by the Perufal of which he may be more 
fully inftruded in this Controverfy. I fliall only now 
add, that as much as this Exclufion of the Scotch Line has 
been exclaimed againft ; there was a politick Reafon for 
it, which will juftify jF/enry VIII. in the Opinion of ma- 
ny Perfons ; and that was, becaufe the Regency of Scot' 
land had refufed to marry their young Queen to Prince 
Edward., according to the Agreement made for that Pur^ 
pofe. This Refufal was fo much refented by Henry VIII, 
jhat it undoubtedly occafioned this Limitation of the 
Succcflion in his IFill; not only for a Puniftiment for 
their Noncompliance ; but rather as an Inducement to 
them to confent to this Marriage ; fince otherwife there 
was no Hopes of obtaining the Crown of England: And 
it may likewife be obferved, that by their Obftinate Re- 
je(5ting all Overtures for this Marriage, the Scotch drew 
upon themfelves that bloody War, which was fuccef- 
fully managed againft them in the Beginning of Ed" 
ward VI.'s Reign, under the Condud of the Duke of 
Somerfet ; for in his Declaration this is afligned as the 
chief, and, if I miftake not, the only Reafon of it. 

I M u s T now hope the Reader will pardon me for 
detaining him fo long upon this Subjed, being a Piece 
of Hiftory very little, if at all known, and which muft 
be allowed to be of great Confequence to the Point I 
am now upon. For the Validity of Henry VIII.'s Will 
being once eftabliftied, it will inevitably follow, that 
King James I. afcended the Throne of England diredly 
contrary to the Order of Succeftion appointed by feveral 


Crovift 6)/ England afferted, &C. 2op 

AHs (d) of Parliament ; and yet in the A61, which re- 
cognized him, it is exprefly faid, (e) That immediately up^ 
on the Dijfolution and Deceafe of Elizabeth late Queen of 
England, the Imperial Crown of England, fyc. did by Inhe- 
rent Birthright^ and Lawful and Vndoubted Succejfion^ defcend 
and come to the faid King James, tiyu. fo that, tho' it is ia 
Fad true, that feveral Limitations of the Succeflion have 
been made in Parliament, and Perfons, who were enti- 
tled to the Crown by Primogeniture and Blood, have 
thereby been excluded ; yet it is alfo evident, that no 
Precedents have hitherto been met with, of Parliamentary 
Entails^ that have long prevailed againft thofe, that 
claimed by Common Law. And it is not a little remarka- 
ble, that tho' Queen Elizabeth thought fit to make it High 
Treajon (f) for any one^ during her Life^ to affirm^ that /he 
and her Two Houjes of Parliament could not make Laws of 
fufficient Force and Validity to bind the Dejcent and Inheritance 
of the Crown; yet this very Queen, whofe Wifdom is fo 
juftly efieemed Abroad, and admired at Home ; whofe 
Memory is fo defervedly precious among all true Englijh^ 
mm -J and whofe Example will be always looked upon as 
worthy of Imitation by her greateft Succeflbrs : This 
glorious Princefs, I fay, who knew very well, how the 
Succeflion vyas fettled by her Father's PFzV/, thought it no 
Blemifh to her Honour, to difcourage all the Pretenders of , « 
the Houfe of Suffolk^ throughout the whole Courfe of 
her Reign ; and at laft entirely defeated all their Hopes 
and Imaginations, by placing the Stuart Family upon the 
Throne. I fpeak not this out of a Defign of commend- 
ing her for any Violations of the Laws of her Country, 
which (hould always be efteemed Sacred by Princes them- 
felves ; and tho' perhaps flie never had the Intereft of her 
Kingdom more at Heart, than in this particular Adion ; 
yet I fliill never pretend to defend her ; if thofe, who 
are proper Judges in this Matter, (hall think her charge- 
able with Injuftice. I had before premifed, that my Bu- 
finefs was only to enquire into Matter ofFaB in the pre- 
fent Point of Controverfy, without any Regard to the 

(d) Viz. the ^-^th ef Hen- 8. the prfl Commons. See the Journal of that Houfe, 

•f Edw. 6. c. 12. and i Eliz. c 5. i" Jacobi. yind this, I believe, was the 

(f) It is ehfervable, that this Bill for the firJlTtme that fitch a Compliment was faid 

Recognition of King James 1. as True and to any Bill. 

Rightful King of England^ was read (f) 13 £]ie. c, i. 
three Times the fame Day in the Houfe of 

H h h ^ Que- 

210 The Hereditary Right of the 

Queftlon of Kight ; and in Purfuance of this Purpofe, I 
have now brought down my Enquiries to the Reign of 
King Jamesl; and made it evident (if I may venture to 
fpeak with fo much Aflfurance) that he fucceeded contra- 
ry to feveral Adts of Parliament, by which he was expref- 
ly excluded. I have farther obferved, that his Acceffion 
to the Throne was ftudioufly promoted, and at laft ef- 
feded by Queen Elizabeth herfelf and her Council ; and 
therefore I do not pretend to acquit her of a manifeft 
Contempt of thofe A&.s of Parliament^ from which her 
Sifter and (he in fome Meafure derived their Right to the 

It may be now expected, fince I have in a manner 
Arraigned the Memory of Queen Elizabeth^ for ading 
contrary to a Parliamentary Entail ; that I fhould make 
good my Acculation by good Authority ; and that I fhall 
(g) This wat now attempt to do. Soon after (g) her Pofleffion of the 
r56^?]^tf- Crown, (he came to this Refolution with the Scotch Am- 
wot^'^^^- bafifador, that if his Queen would abftain from ufing 
«/ Scotland, the EngUjI) Arms and Titles, during the Life of Queen 
p. 182. Elizabeth^ fhe wou'd oblige herfelf and her Children, to 
do nothing in Prejudice of the Queen of Scots Succef- 
ih) Spotf- (ion. And when (h) Maitland, the Scotch Amba(rador, 
P-Tsl/^"*' P'^^^^^ ^^^ ^° declare his Miftrefs her next SuccefTor; (he 
made Anfwer, That hU Queen might ajfuredly ezpeB at her 
Hands^ that fhe would nez'er wrong her, nor her Caufe^ if it 
were jufi in the leafl Point : And then (he added, / take 
G OD to witnefij who heareth thi^ Conference^ that next my- 
fi^ft ^ ^^^^ ""^ ^^y ^"^7 vphcm 1 would preferr to her^ or who 
(if the Title fhould fall to be controverted) might exclude her. 
Thefe were early Significations of her Good- Will towards 
the Scotch Family, in the Beginning of her Reign ; and, 
on the other fide, fhe was fo far from giving any Coun- 
tenance to the Pretenfions of the Houfe of Suffolk^ that 
(i) Cam- Mr. Hah was (i) imprifoned for prefuming to write a 
A. D. 1564. Defence of their Title, and Sir Kicolas Bacon^ Lord 
Keeper, who was fuppofed to have aflTifted him in it, 
was long out of Favour upon that Account. Soon af- 
den\ a!^' ^^^t '^^- Thornton^ Law-Reader of Lincolns-Inn^ (k) was 
A.P. 156k order'd into Cuftody for arguing againft the Right of the 
Scotch Queen. And within a (hort Space of Time, 
, finding the Party for the Houfe of Suffolk were very 
bufy, and bold in afTerting the Claim of that Fa- 
mily > 

Cromi of England afferted, &g* ii \ 

mlly ; (/) (lie permitted the Bifhop of Koffe to publifh 
his Vindication of the Rights of his Queen ; in Which he 
is laid (w) to have been a (lifted by Sir Anthony Brown^ 
Chief Jujiice of the Common-Pleas^ and one Caryll an emi' 
nent Lawyer. 'Tis true, fhe took Care to let King 
James know, that while he continued of the Popifti 
Perfuafion, he muft not hope for her Friendfhipj and 
even his Mother, as violent a Papift as fhe was, knew 
lb well the Averfion, which the Court of England had 
againft her Religion, that (he (n) never thought it ad- 
vifable in any of her Letters to her Son, to dilTuade him 
from perfevering in the Proteflant Profeffion ; and when 
fhe was laying her Head upon the Block, fhe fent this 
h{\ MefTage to him ; That although Jhe was of another Re- 
ligion^ than that wherein he was brought up^ jiet Jhe would 
not prefs him to change^ except his Confcience forced him to it ; 
not doubting^ but if he lead a good Li fe^ and were careful to do 
Jufiice^ and govern well^ he would be in a good Cafe in his 
own Religion. In Compliance therefore with the whol- 
fome Counfels of his beft Friends, he at length (o) de- 
clared himfelf openly againft the Church of Rome; and 
thereby gained entirely Queen Elizabeth^ AfFedions^ 
who before had difpenfed her Favours to him but fpa- 
ringly, and with great Referves. But as foon as ftje was 
afifured, that his Sentiments in Religion became conform- 
able to her own ; ftie was not wanting in all proper 
Encouragements to him, to look upon the Succeffion as 
effectually fecured to him after her Deceafe : And it is not 
a little remarkable, that her Chief Minifters, who had 
been moft active in bringing the Mother to the Scaffold, 
were not afraid to continue their utmoft Endeavours, to 
bring the Son to the Throne ; fo much more powerful 
was their Concern for the Intereft and Welfare of their 
Country, than their Regards to their own private Safe- 
ty and Advantage. King James therefore having now 
laid fo good a Foundation, was no longer in Danger of 
a Difappointment ; fo that when Queen Elizabeth lay a 
dying, Mr. (p) Camden aflures us. He was the only Per fin 

(I) CamdenV Eliz. A. D. 1569. (0) Camden'^ Eliz. A. D. 15P4. 

(jn) Camden, Ibid. (p) Annal. Eliz. A. D. 160^, and Sir 

in) Kin? James gives this yiccount Henry Savill, in his EpiftU Dedicatory to 

himfelf of his Mother's Carriage towards King James, before the Edition of S. Chry- 

him, in his Premonition to Chrifiian foftome'j Works, tells the King ; ^erpetui 

Monarchs. charitate te, ut Filium, complexa efi 


21 Z The Hereditary Right of the 

thouiht of for her Succejfor ; to whom the Heads of all Parties 
immediately (q) paid their Compliments^ as the Prince vphom the 
Queen always juftly and heartily favoured. And both (r) he 
and Archbi(hop Spotfwood relate it, as a certain Truth, 
that (he declared him her Succeflbr, before the Arch- 
bifhop of Canterbury^ and the Lord Admiral^ with her 
laft and dying Breath. And no fooner had (he expired, 
but her Privy Council {s) difpatched a Letter to King 
James^ to acquaint him with it; in which they declare his 
undoubted Right, and promife to ferve him with the ut- 
moft Fidelity ; and the fame Morning Care was taken 
to proclaim him King. Thus was King James at length 
placed upon the Throne of England^ in Oppofition to the 
feveral ABs of Settlement made againft him ; and thus was 
Henry VIII. difappointed in his Endeavours to exclude 
the Scotch Family. 

1 SHALL conclude this Head with the following Refle- 
xion of Sir Walter Raleigh, (t) As for Henry VIII, what 
Laws and Wills did he devife to eftahUJh this Kingdom in his 
own IJfues ? ujing his Jharpeji Weapons to cut off and cut down 
thofe Branches^which /prang from the fame Root., that himfelfdid. 
And in the End (notwithfianding thefe hUfo many irrelig ious Pro- 
vifions) it pleafed God to take away all his own without Increafe. 

The Doctor's laft Effort to prove the Authority of 
Parliamentary Entails, is from the Succeffion of Queen 
Mary and Elizabeth : Tbefirji ofwhich^ (u) he fays, claimed 
the Crown chiefly by Virtue of the ^5 Henry VIII, and She 
or Queen Elizabeth coud have no other Title to it. Both of 
them could not have a Title by Birth; and yet both fuccejfively 
afcended the Throne by this A&. of Settlement. Both had been 
declared by Law illegitimate in the a 8 cj^ Henry VIII, and one 
of them was not of Legitimate Birth ; and therefore could have 
no other Title to the Throne.^ but what this AB gave her. 
And foon after, the Dodor again aflures us, (z) That 

Kegina ; ncque mente folilm & cogita- (r) Camden at the End of his Annals ^ 

tione, fed etiam non obfcuris fermoni- <»»(/ Spotfwood, p. 171. 
bus defignabat Hsredem. Id quod eo {s} Archbljhop SpotfwoodV Htflory of 

fidentius affirmo, quod non ex inccrtis the Church of Scotland, p. 472, 474. 

aliorum rumoribus, fed ex iplius hoc ore This Letter is jlgri'd by the Privy Council, 

prsefens acceperira, cum forte de tua ma- and many of the Nebiliiy, (March 24.) 

jeftate privatim, ut fit, fermo incidttfet. in vchich they e.xprtjly acknovfledge, that to 

{q) Spotfwood 7<??;, (p. 470.) Secreta- his Right the Lineal and Lanint Succcjjton 

ry Cecill had ajfured King James of his of all their late Sovereign's Dominions did 

Service ; and the Earl of Northumber- juftly and only appertain. 
Jand advertifed him of the Queen s Sick- (0 Sir VValter RaleighV Preface to 

nefs, and advifed him to make hafte to take his Hi^iory of the World. 

Poffejjion. («) Defence of the rieif, p. <. 

(a:) Ibid. p. 8. 


Crow^of England aferted,&Cc, 2. 1 3 

Queen MsLiy or Queen Elizabeth was certainly illegitimate^ 
and therefore could have no other ^ but a Farliamentary Title to 
the Crown ; Ani yet it is certain^ that Queen Mary was 
brought to the Throne chiefly by the Affifiance of her Proteffant ' 
Subje^s^ who yet generally did not believe her of Legitimate 
Birth ; and Queen Elizabetli was proclaimed by the Authori' 
ty of a Popijh Parliament^ who as generally believd her illegi- 
timate. Which Jhews^ that both Proteftants and VaplWs a- 
greed in maintaining the A6t of Succeffion, that was made 
the '^fy of King Henry VIII; and confequently both believed 
the Defcent of the Crown of England was limitable by AEi 
of Parliament. 

I H A V E here again the Misfortune to diflent from 
the Dodor in moft of the Propofitions contain'd in thefe 
Paffages. And firft of all, 1 cannot agree with him, that 
thefe Queens could have no other Title, than the ^5 
Henry VIII ; for the A61:s of Parliament teach us other- 
wife, when they tell us. That the (y) Imperial Crown de- 
fcended to Queen Mary ', and that (z) Queen Elizabeth was 
Rightly^ and Lineally.^ and Lawfully defcended from the Blood 
i?o)/a/ of England : If thefe Ladies did not infift upon 
their Birth among their other Claims, they might have 
good Reafons for that Oraiffion ; but furely the Dodor 
will not from thence inferr, that they did not think them- 
felves Legitimate. That they were both Baflardizd by 
A6t of Parliament is certain ; but if that proves any thing, 
it is more than the Doftor feems willing it (hould : For 
it will then follow, that neither of them had a Title by 
Birth ; whereas he does not difpute, but one of them 
might be Legitimate ; tho' he does not determine, which 
it was. But why might they not both be Legitimate ? 
Let us a little enquire into the Reafons, upon which fuch 
an Aflcrtion muft be founded. The Marriage between 
King Henry VIII. and Queen Katharine was declared Null 
and Void by the proper Courts of Judicature, and the 
fupreme Authority of the Kingdom ; therefore it is faid, 
their Iffue muft needs be Illegitimate : But the Canonifts 
utterly deny this Confequence ; for (a) they unanimoufly 

fy) I Maris I. Conjugibus. Can. ex tenorc. Qui filii 

Cz,) I Eliz, 3. funt legit, c. pervenit eodem Tit. Co- 

CaJ Filii procreati ex matiimonio varruvias de Matrimonio. V. 2. 1 om. i. 

nullo, quandoque legitimi cenfentur, p. 221. Here rre fee bonz Mes in one of 

nempe propter bonam fidem Alteriiu ex the Parties only is fHJflcient. 

I i i affirm, 

214 ^^^ Hereditary Right of the 

affirm, that Marriage contra^ed bona fide (notrvithjianding 
any Impediment^ which may afterwards be difcovered) is fuffi^ 
dent to render the Children Legitimate ; fo that according 
• to the Rules of that Law, (to the Deciiions of which all 
Cafes of this Nature have been conftantly referred by the 
Pradice of England) Queen Mary muft be looked upon 
(h) I Ma- as lawfully born ; for the {b) Matrimony of her Parents was 
"* ^' contra&ed^ folemnized^ and confummated by the mutual Agree- 
ment and Ajfent of them both ; by the Counfel and Admce of 
the mofi wife and grauefl Men of both their Realms ; by the 
deliberate and mature Conjjderation and Confent of the beft and 
moft notable Men in Learnings in thofe Bays, 0/ ChrifteO' 
dom : And no Doubt or Scruple arofe concerning the 
Lawfulnefs of this Marriage, till Twenty Years after, that 
is till many Years after the Birth of Queen Mary. And 
now, left the Do6^or Ihould fufpedt me to be guilty of 
Partiality to a Pofijh Queen ; or that I have advanced an 
Opinion never before approved of by any Learned fro- 
teftants; the following Authorities will, 1 doubt not, be 
fufFicient for my Juftification. 
CO Bi/hp (c) Bishop Godwin lays it down as a Rule of the Chri^ 
Godwin-^ fl* ^ z^] j-^^f /\4atrimony contraBed without any conceiwd 
Mary,p.i57. Impediment {altho. it after chance to be atjjoima m unlawful) 
^d)'Toprovt is of fuch Force, that the Children begotten injuch Wedlock 
this Rule, he are to be accounted lawful ; and then he adds, if this 
"Mirftnt- Rule he admitted as true, Queen Mary was legitimately 

"and Qnon I N the late Reigu of King James II. Dr. William Cla- 
^'"'' gett, the very Learned and Judicious Preacher of Grays^ 

Inn, publifh'd an Anfwer to a Popijh Pamphlet, entituled, 
T. W.'i Queries concerning the Englifh Reformation. Among 
(0 P. 31. which the (e) following Query is obfervable. If Mary 
was Legitimate Heirefs of the Kingdom ; theri Elizabeth was 
not, &c. This had been a Popijh Dilemma, till of late 
Days ; but now it feems the Dodor thinks it may do good 
Proteftant Sermce ; but I would intreat him to take Notice 
of Dr. Clagetth Anfwer; The Legitimacy of Elizabeth 
(fays he) is plain, fuppofing the Marriage of Queen Katha- 
rine to King Henry to be void ; but yet Mary, the Child of 
that Marriage, was not Illegitimate ; becaufe the Marriage was 
made without Fraud. 

Lastly, The prefent Bifhop of Salisbury s Opinion 
may poffibly be thought of greateft Weight ; 1 fhall 


Cromi^ of England afferted, &CC. 11 ^ 

therefore here fet it down for the Reader's Perufal. It will 
be found in his Reflexions on the Oxford Thefisy relating 
to the Englilh Reformation^ ('another Pofijh Pamphlet) in an^ 
fwer to an Objedtion againft Queen Elizabeth^ Legitima' 
cy. (f) His Words are thefe : (O^'flc-don 

T> • 1 1 n 1 • • 7 ritt 1 I on the Qx- 

But in the lajt place it is to be conjider a, that here was an tbrd Thefes, 
innocent Child in the Cafe^ whofe Legitimacy and Right could ^'"'' ^'P^^* 
not be cut off by her Mother s extorted Confeffion : Infants are 
more particularly under the Prote&ion of the Law ; and therefore 
A&s paffed againji them in that State of Feeblenefs^ have fucb 
Flaws in them^ that they have always a Right to remrfe them', 
Jo a Jingle Witnefs^ infuch Circumjiances as her Mother's were^ 
could not be fufficient to difgrace and dijinherit her ; and the Con^ 
firmation of the Aii of Parliament that followed afterwards^ 
might have been a forcible Bar in Law to her ; but could be no 
jufi one ; for as a Baftard is Jiill a Bajiard^ even tho he were 
Legitimated by A^ of Parliament^ Jo a Lawful Child is Jiilt 
what ^tis^ notwithjianding a Sentence ofBaJiardy confirmed in 
Parliament : And this is Jo true, and was fo evidently the Pra* 
^iceof that Time^ that even King Henry, in his Suit of Di^ 
vorce with Queen Katharine, was willing to have his Daugh' 
ter Mary declared Legitimate ; becauje Children begat in a 
Marriage^ are begotten bona fide ; and Jo they ought not to 
fuffer^ becaufe ofthejecret Fault of their Parents. ' And if this 
was yielded in a Marriage^ where both Parents were^ according 
to the King's Pretenjions^ guilty of Inceji ; it was much more 
juji in this Cafe of Ann Bullen, even fuppo^ng her Precon^ 
tra^ true ; for her Jecret Fault ought not to blemijh nor ruin her 
innocent Child. Another Inflame that fell out at this time in 
the Royal Family^ is very conjiderable ; and becaufe it is little . 
known., I fancy the Reader will not be difileafed to have it par' 
ticularly opend to him. Henry VIII.V Sifter., that was Queen 
o/' Scotland, did after her Husband King James IV.V Death^ 
marry the Earl of Angus ; and by that Marriage Jhe had a 
Daughter., Lady Margaret Douglas. Some time after her 
Marriage Jhe fell to he in ill Terms with her Husband^ and 
difcffuerd a PrecontraSi he had given to another ; and upon 
this Jhe fued him in the Spiritual Court ; and it being proved., 
the Marriage was annulled ; but her Daughter was Jiiil held 
fo be Legitimated ; and was entertain d by King Henry, as his 
Niece., and given by him in Marriage to the Earl of Lenox ; 
of whom defended the Lord Darnly, that was King James L 
of England*/ Father ; and Jince he was conjider d to be the 


21 6 The Hereditary Right of the 

fecond Perfin in the Succejfion to the Crown of England, after 
*the Queen of Scots, this Jhevps^ that by the Pra&ice of that 
Time^ a PrecontraB even legally proved^ yet did not illegiti' 
mate the Ijfue^ that were begotten bona fide by one of the Pa- 

T H u s we fee that Protefiants^ as well as Papifis^ have 
aflerted the Legitimacy of Queen Mary^ notwithftanding 
the Nullity of her Mothers Marriage, and the A&: of Par- 
liament which declared her a Baftard: And if the Dodor 
fhould now wonder, how they could prefume to enter- 
tain an Opinion fo contrary to Law ; all that 1 can fay 
for them is, that they believed it to be an unjuft Law, 
and therefore of no Force and Obligation, as contradi- 
dory to the common Principles of Juftice and Equity, 
by which the Chriftian World has been govern'd for fe- 
veral Ages. And the Dodor may be pleafed to take 
Notice, this was BifhopyeH'e//'s Opinion too; for in the 
(g) Place before cited, he fays exprefly, that the Crown of 
England was due to Queen Elizabeth by Inheritance^ and by 

I MOST now follow the Dodor to his [h) Chapter of 
Authorities^ in which he pretends to fupport his Opinion 
by that of our befi Modern Lawyers. The PafTages cited 
by him out of the three firft, viz. the Lord Chancellor Ba- 
con, (i) the Lord Chief Juftice CoV.^.^ and the Lord Keeper 
Bridgman.^ have already received an Anfwer in the for- 
mer Part of this Difcourfe, to which I beg Leave to re- 
ferr my Reader ; but for his farther Satisfaction 1 (hall 
now (hew him, that the two firft of thefe great Authors 

(g) See his View of a Seditious Bull, Things in Sir Etlvpard Coke's Pofthumous 

• p. 12. Works, efpecially in his Pleas of the 

(o) F/ew, cap. 6. Crown concerning Treafons, and in his 

(i) Ii may be proper here to obferve, Jurifdiftion of the Courts concerning 

that this Citation from my Lord Chief Ju- Parliaments, which lie under a Sufpi- 

Jiice Coke, (jn the third of his Inftitutes, cion, whether they received no Altera- 

c. Treafon) is of fufpeHed Authority, upon tion ; they coming out in the Time of 

Account of the many Errors in that Chapter that which is called the Long Parliament^ 

and Folume ; for a Proof of which the in the Time of that defperate Rebellion 

Readtr may be pleased to perufe the following againft King Charles I. But certain it is, 

Pajfages : there are many Errors in thofe Places, 

It was obferved, {by the Judges) that Ibid. p. 49. To thefe may be added the 
in thefe Pofthumous Works of Sir Ed- Opinion of the Author of the Difcourfe con- 
ward Coke, of the Pleas of the Crown, cerning the Jurifdiflion of Chancery, at 
and ]urifdi£lion of Courts, many great the End of the Reports of Chancery, 
Errors were publifhed ; and in particular p. 2. 45. where he plainly quejlions, whe- 
in his Difcourfe of Treafon, and in the ther my Lord chief Jujiice Coke was the 
Treatifc of Parliaments, Kelyng'a Reports, Author of feveral Parts of the third of the 
p. 21. And again ; There are many Inftitutes. 



Cro'wn of England afferled, &c. 

are plainly againft the Dodor in other Parts cf their 

I T is a known Pofition of Doctor Hlgdens^ and evi' 
dently maintained throughout thbfe his Books, with 
which I am now concerned, that xvhofiever is King de 
Fado, is at the fame time King de Jure; whereby that 
uflial DiftinCtion is entirely laid afide, as deftitute of any 
Foundation from the Laws of England. But my Lord. 
Chancellor Bacon is clearly of another Mind ; for he (K) 
fays, that Richard III. was King in FaSi only.^ but Tyrant 
both in Title and Regiment ; and fo commonly termed and re- 
futed in all Times Jince. And in {/) another Place he 
tells us, That though Henry Vll.Jhould obtain by Parliament 
to be continued King., yet he knew there, was a 'very great Dif- 
ference between a King., that holdeth his Crown by a Ciuil A£i 
of the States.^ and one that holdeth it originally by the Law of 
feature and Defcent of Blood : What can be more evident, 
than that his Lordfhip believed, in thefe Paffagesy 
that Richard III. was not King de Jure^ and that Hen- 
ry Vll.'s Parliamentary Title was not of equal Force and 
Authority with one by Blood ? (m) 

Again, Another Doftrine which undeniably flows 
from the Do6tor's Principles, is this ; That whoemr lofes 
his Throne., muft Jit fiiU contentedly.^ without ujing any Endea^ 
'vours for the regaining of it ; hecaufe the Perfon in Pojfejfioii 
of it., M by the Laws of the Realm abfolutely entitled to the 
Allegiance of the Subje&s. But his Lordftiip exprefles the 
greateft Indignation imaginable againft fuch an Opinion f 


{i) Life of Henry 7. p. i. 

(/) Ibid. p. 4. 

(m) And. what he fays in another Place, 
is extremely remarkaUe to this Pttrpofe : 
(In hii Advertifement touching a Holy 
War, /'.43O The Prophet Hofeas, in 
the I'erfon of God, faith of the jevps. 
They have reigned, bat not by tne; they 
have fet a Seigniory over themfelves, but 
I knew nothing of it. Which Place 
pTOveth plainly, that there are Go- 
vernments, which God doth not avow : 
For though they be ordained by his fe- 
cret Providence, yet they are not ac- 
knowledged by his Revealed Will : 
Neither can this be meant of Evil Go- 
vernors or Tyrants ; for they are often 
avowed and eftablilhcd as Lawful Po- 
lentarqs, &c. This Nullity of Policy 
and Right of Eftate in fome Nations, 

is yet more Hgnificantly expreffed by 
Mofes iti Yni Canticle, in the Perfon of 
God to xha Jews, I ivill incenfe you 
with a People, that are no People. Such 
as were no doubt the People of Candan^ 
after Seifn was given of the Land of 
Promife to the Jfraelites ; for from that 
Time their Right to the Land was dif- 
folved, though they remained in many 
Places unconquered. By this we may 
fee, that as there are Kings de FaUo, and, 
not dejure, in refpe£t to the Nullity of 
their Title ; fo are there Nations that 
are Occupants de FoRo, and not de Jure^ 
of their Territories, in refpeft to the 
Nullity of their Polity or Government. 
And in his Charge againjl J. S. (Refufcir. 
p. -54.) he calls King Henry IV. m Uf>ir- 
per. Vide Locun* 

K k k 


21 8 The Hereditary Right of the 

(n)G»fide- ^yii a Prince (fays (n) he) that is diffoffeffed^ not make War 
^aW^with for the Recovery? No Man u fo^oor of judgment as will af* 

Spain, p. 3. fiyjjjlt^ S^c. 

Lastly, in his Cafe of the Pojl-Nati^ he has this 
Paflage ; That Allegiance continueth after Laws. I will only 
put the Cafe^ which was remembered by two great Judges in « 
great AJfembly^ which was; That if a King of England 
Jhould be expulfed his Kingdom^ and fime particular Subje&s 
Jhould follow him in Flight or Exile in Foreign Parts^ and any 
of them there Jhould confpire his Death; that upon the Reco" 
'Very of his Kingdom^ fuch a SubjeB mighty by the Law of 
England, he proceeded with^ for Treafon committed and per" 
petrated at what Time he had no Kingdom^ and in Place 
where the Law did not bind. Here we fee Treafon may be 
committed againft a King out of Poffejfion ; and therefore 
his Lordfhip was not of Sir Edward Cokes Opinioh, who 
thinks the King de FaBo only is the Seignor le Roy^ to be 
underftood in all Statutes of Treafon. 

B u T Sir Edward Coke himfelf was not always of this 
Opinion neither ; for in the famous Cafe of the Fofi^Na- 
ti^ being required in the Houfe of Lords to declare his 
Judgment in that Matter, with the reft of the Judges ; 
Two of the Points infifted upon were thefe ; That Alle- 
giance is after Laws ; and that Allegiance followeth the Na- 
tural Perfon^ not the Politick. A prowuer ceo fuit dit^ que 
file Roy foit expulfe par for ce^ fy auter ufurpe^ encore le Alle- 
giance neji toll^ comment que le loy foit toll. Thefe Words 
are very plain and clear, and manifeftly Ihew, that AJle-, 
giance may be due to a King out of Poffejfion ; but it will be 
asked, how does it appear, that this was Sir Edward 
(i) See his Cokes Opinion ? I anfwer, Sir Francis Moore (0) tells us, 
Ci^'^lfThe ^ it was; and we have no Reafon to doubt of his Tefti- 
Poft-Nati, mony. He (p) fays. The Lord Chief Jujiice Popham, the 
(p) Ibid. Lord Chief Jujiice Coke, and Chief Baron Fleming, did 
^Cgfibid S^'^^ ^*" ^^^^ Anfwer with one Affent ; and that the (q) reji of 
P:8o5. the Judges did affirm the fame^ exceptingS^^lmdy. So that 
now we have not only my Lord Chief Juftice Coke's Opi- 
nion for the Authority of a King de Jure out of Poffejfion.^ 
butalfo that of the whole Bench of Judges ; to whofe unani- 
mous Refolutions the Doctor at other Times is willing to 
pay fo great a Deference. This Paflage out of Sir Fran- 
cis Moore's Reports, had been before objedled to the Do- 
ftor, to which he has thought fit to make fuch a Re- 
. ply, 

CrG%m of E ngland afferted, &c. 2 1 ^ 

ply, as fhews he had as little Rerpe(Sl: for his Reader, as 
for his Adverfaries. This Remarket^ fays (rj he, cites (r) Bcfmc, 
MooreV Reports^ where it is faid^ that Allegiance follows the ^' '°^" 
Natural Perfin of the King. Here the Do6tor ftops fhort, 
and makes this fhrevvd Repartee, as if (fays he) a King 
de Fa6to had not a Natural Perfin. But how can the Do- 
dor's Adverfaries help it, if Judges are fometimes im- 
pertinent; and Sir Edward Coke himfelf (the Doctor's 
Oracle) does not always fpeak Senfe ? For the Propofi- 
tion here ridiculed by the Doftor, was Part of an Ar^ 
gument made ufe of by that great Chief Jufiice ; and it 
is no otherwife applied by the Objedor (with whom 
the Dodor was concern'd) than it was by the Judges 
themfelves in Moores Reports. Let the Reader be plea- 
fed to examine the Place, and he will find, that the In- 
tention of the Judges was to prove, that Allegiance may he 
due to a King of England, in a Country.^ where the Laws of 
England are of no Authority ; and in order to this, they 
lay it down as a certain Propofition, that Allegiance is after 
the Laws ', becaufe it follows the Natural Perfin of the King., 
not his Politick; that is, though a King of England fhould 
be out of his Dominions, where he cannot put his Laws ' 

in Execution, and do the Office of a King ; yet he ftill 
retains a Right to the Allegiance of his Subjects : Is it not 
then clear, in their Opinion, that Allegiance does not fol- 
low Pojfejfion ? And is not this a Point of Law deftrudive 
of the Doctor's Pofitions ; and therefore fit for his Adver^ 
faries to urge againft him ? But the Judges proceed far- 
ther: They add, that if a King he expelled by Force., and 
another ufurps., yet the Allegiance is not taken away., tho the 
Law k : One would think now, that the Senfe of thefe 
Words were plain and obvious ; that by the King expelled., 
would be meant a King de Jure^ becaufe no other's Throne 
can heufurped; and that whoever poflefles the Rights of 
the King de Jure., though he- be ftyled King de Fa&o., is 
an Vfurper in the Intention of thefe Judges : By no means, 
fays the Dodtor : By Vfurper in this Place, you mufi not 
underjiand a King de Fafto; this cannot be; becaufitheLaw 
is fi far from ceajing under a King de Fado, that it is ad- 
minifired not only aBually., but legally., Sec and therefore by 
another that ufurps, mufi be underfiood a Simon Mountfort, 
a Lady Jane Grey, or an Oliver, under whom the Laws did 
ceafe ; and no Judicial Proceedings were 'valid any fart her ^ than 


Z20 The Hereditary Right of the 

confirmed. But the Doctor has here grofly miftaken the 
Meaning of the Judges ; for, Fir/?, thofe Words Al- 
legiance nefi toll^ comment que k loy fiit toll^ fwhich the Do' 
6lor tranilates, Allegiance does not ceafi^ though the Larv 
does) are to be underftood only with regard to the 
Difpoflefled King de Jure^ with refped: to whom the 
Larv ceafes, when he is out of his own Dominions, and 
has not Power to execute it ; and this appears plainly 
from the fuller Report of this Argument of the Judges, 
(s) p. 2i8. vvhich I before cited from my Lord (s) Bacon ; for he tells 
us, they gave it for Law, that if any particular Subjeci, 
who followed the King de Jure in hU Flight or Exile into Fo- 
reign Parts, Jhould conjpire his Death j he mighty whenever that 
King recovered his Kingdom^ be proceeded againfi^ by the Law 
of hngland, for Treafon committed and perpetrated^ at what 
Time he had no Kingdom^ and in Place where the Law did not 
bind. This fufficiently explains, what their Lordfhips 
meant by the Law ceajing : For, Secondly^ The Law could 
not be faid to ceafe under thofe very Vfurpers the Doctor 
rnentions. Whatever Power Simon Mountfort had, he 
never would prefume to ufe it againft the Authority of 
the Laws of England-, for then he muft have loft all his 
Intereft among the Barons.^ on whofe Afliftance he entire- 
ly depended : And furely, if the Lady Jane performed 
any A6ts of Government, they were agreeable to the 
Laws of England 'y if none, how could (he be anVfur- 
per ? The Truth is, though the Dodor here, for a pre- 
lent Turn, is pleafed to put her in the Lift oi Vfurpers; 

(0 ^/w, yet in (t) another Place, where he confiders her Cafe 
p. 68. more deliberately, he tells us, She never was in the Throne^ 
and that her Government was but in Fieri, Jhe was not Queen 
de Fado. 

I COME now to Oliver Cromwell^ under whom the 
Dodor affirms the Laws did ceafe ; though it is a Matter 
of Fa6i:, that cannot be contefted, that his Courts of Ju- 
ftice had no other Rules for their Proceedings, but the 
Laws of England; and he may as well fay, he did not 
govern at all, as that he govern'd by any other Laws^ 
than thofe of England. And this was openly declared 
before the Houle of Lords, by the Attorney-General, 

(«) See the and the reft of the Learned Counfel, in (u) Baden s Cafe; 

£e7t, Rex for having argued from a Judgment given in Oliver the 

verfusBaden, Pro?f(?or's Time, it was thereupon faid. That tho it might 
p. 75. ^ % 

Cromt <9f England affert'ed.t^c, Hii 

he furmifed^ that this was an Opinion 'vented in evil Times j 
yet \is well known^ that excepting their Criminal Proceedings^ 
the Larv flourifhed^ and the 'Judges were Men of Learning ; as 
Mr. Juftice Twifden hath often afirmed upon the Bench. 
Well ; but though the Law was aftually adminiftred by 
Oliver Cromwell.^ yet the Do6tor fays, it was not legally • 
and therefore his Judicial Proceedings were not valid any far^ 
ther.^ than confirmed. Now here I am entirely of the Do- 
ctor's Mind, that the Law was not legally adminiflred by 
Cromwell ; but may we therefore fay, the Law ceafed un- , 
der his Government ? If we may, I know not how the 
Doctor's Three Henrys of the Houfe of Lancajier can be 
acquitted of being Vfurpers ; for all their Judicial Pro- 
ceedings were confinri'd by Edward IV .^ which the Do6tor 
looks upon as an evident Proof of their Want of Validity. 
In a word, the Dodlor's Kings de Fa&o are frequently 
ftyled Vfurpers in the Laws of England., as well as Crom- 
well; and therefore fince the Law has made no Difference 
between them, I fliall never think it reafonable to be- 
lieve, the Judges have done fo in the prefent Cafe. 

The Do<3:or's next Author is my Lord Chief Juftice' , ' 
Bale ; but the PafTages I have already cited out of his i 
Writings, abundantly fhew, that his Opinion was clear- 
ly againft the Dodtor ; and the Reader will be very fen- 
fible of this Truth, by the following View of themy 
which I beg Leave to lay before him. 

(.r) ' A King de ¥a&o, but not de Jure., fuch as were (x) Hifforij^ 
Henry IV, V, and VI, being in the fole and ad^ual Pof- gjJnT" 
feffion of the Kingly Style and Government, is a King ms. Voi. r. 
within this AB. mcLig 

' And in fuch Cafe, the Right Heir of the Crown fit- ^^^ '^''"'- 

r, . ,1 . • r^ • • ir • . . . Jon in csm- 

ting rrill m a private Capacity, is not a King within p^jfin? the 
thhAB, till he obtain the Exercife of the Sovereign ;g.^^^^^^^^^ 
Power. This was the Cafe of Edmund Earl oi March., or Prince, in* 
and Richard Duke of Tork^ who fucceffively were the Edw.^!' ^^ 
Right Heirs of the Crown, after the Death of King Ri^ 
chard II, as being defcended from Lionel Duke of Cla^ 
rence., the third Son of Edward III ; whereas Henry IV. 
was defcended from John of Gaunt., fourth Son of Ed* _ 
wnd III., and younger Brother of the Duke of Clarence, 
as appears at large by the Statute of i Edward 1 V, and 
the Book of 4 Edward IV, where the AB is printed. 

L 1 1 ' l^ 

2,21 The hereditary Right of the 

* I N the Thirty Ninth of Henry VI, Richard Duke of 
'Xork made out his Title to the Crown, by his Claim 
in Parliament, which Title, notwithftanding the Ob' 
jeflions ofFer'd againft it, was allowed, and acknow- 
ledged; (Vide Rot, Farl. 59 Hen. 6. n. 15. ^ fequeu' 
tibus) but it ended in a Compofition, that Henry VI. 
fhould hold the Crown during his Life, and that after 
his Death it ihould come to Richard Duke of Tork. 
' Although the Duke of Tork was recognized Right 
Heir of the Crown ; yet inafmuch as by Accord in 
Parliament, Henry VI. was to hold it during his Life ; 
and the Duke, during that Time, was as it were fuf- 
pended from the adual Exercife of the Kingly Go- 
vernment ; the Duke was not a King within this A^^ 
during that Time ; nor was he the King's eldeft Son, 
within the fucceeding Claufe ; and therefore in the 
fame Parliament Ko\](n. 24 J there was a Special Claufe 
in that Compofition, that Compaffing of the Death of 
Richard Duke of Tork^ now made Heir Apparent to the 
Crown, fhould be High Treafon. 
' T p I s Accord was broken by the Means of the 
Queen^ and Richard Duke of Tork flain ; whereupon his 
Son and Heir Edward IV, the True Heir to the Crown, 
aflumed the Crown upon the fourth of March^ which 
was the firft Day of his Reign. 
'If the Right Heir of the Crown be in the adual 
Exercife of the Sovereignty, fuppofe in one Part of the 
Kingdom, and an llfurper be in the adual Exercife of 
the Sovereignty in another; yet the Law judgeth him 
in PofTeffion of the Crown, that hath the True Right ; 
and the other is in Truth not fo much as a King ds 
Fa&o ; but a Difturber only, and therefore not a King 
within this A&. This was the Cafe between Edw. IV, 
and Henry VI. Although Edward IV. took upon him 
the Sovereignty, and was declared King in London^ 
upon 4. Martii 1 4.6c, yet Hnry VI. was in the Northern 
Parts, and treated as a King, and raifed a great Army ; 
which being fubdued by King Edward IV, in the latter 
End of May^ in the bloody Battle of Towton-Field ; 
then, and not till then, had Edward I V^. the total and 
quiet PofTeffion of the Crown ; and in November fol- 
lowing held a Parliament, wherein his Title is decla- 
red, and the Commencement of his Reign enacted to 

' be 

Crow^f of Enghnd ajferted, &CC. . 225 

be i^^° Martii before ; and Henry VJ^ Henry V, and Hen* 
rjVI, declared Ufurpers. During this Interval from 
^^° Martii to June^ HenrjYl. was ufed as King; and 
yet was not fo much as a King de FaEio ; Edward IV. 
the Right Heir being likewife in PofTeffion of the Re- 

'The like was between Queen Mary^ and the Lady 
Jane Dudley^ who was proclaimed Queen at London.^ 
by Pretence of Nomination by King Edward VI, but 
held not the Title above Ten Days. For the fame 
Time Queen Mary openly laid Claim to the Crown^ 
and was alfo proclaimed Queen. So that both being 
de FaBo in PofTeffion of the Crown, the Law adjudg'd 
PofTeffion in her, that had the Right, w'z. Queen Aia- 
ry ; and therefore by an ASi of Parliament ( i Mar. c. 9.) 
it is enaded, that Recognizances dated An. 1 Regin£ 
J-ine^ fhall be allowed as good, which needed not have 
been, if fhe had been Regina de Fa&o., tho' an Vfurper. 
Becaufe Judicial A&s are not Diminutions of the Regal 
Revenue. ^ Edw. ^. 15,11. 
' A N D if any Ihall fay, that if Henry VI, or Queen 
Jane had gotten the Vidtory and PofTeffion of the 
Crown, that poffibly as much would have been af- 
ferted by them and their Participants agzind Edward IV, 
and Queen Mary : This is an Objedion of no Value ; 
for I do not take my Meafures herein from Events, 
which are various and uncertain ; but according to the 
true Right of Matters, purfuant to the Laws of England^ 
as near as lean. 

(y) ' That Lawful Prince that hath the Prior Ob- cy) Hift. 
ligation of Allegiance from his Subjects, cannot lofe ^Q^\^p\-^,- 
'^that Interefl without his own Confent, by his Suh' Concerning 
' jed's refigning himfelf to the Succeffion of another. vSf J""' 
'And hence it is, that the Natural-born Subjed of 
one Prince, cannot, by fwearing Allegiance to ano- 
ther Prince, put off or difcharge himfelf froni that 
Natural Allegiance. For this Natural Allegiance was 
Intrinfick, and Primitive, antecedent to the other ; and 
cannot be devefled without the concurrent A61: of that 
Prince, to whom it was firfl due. 

(z) 'Although Edward II. had a kind of pre- c^) Hirt. 
tended Depofing, and was pretended to have refign'd^capl^'ij!'^^"' 
and his Son Edward III. took upon him the Kingly Voi. i. 

' Name 

224 ^^^ Hereditary Right of the 

Name and Office ; yet in the Opinion of thofe Times,^ 
Edward II. continued, as to fome Purpofes, his Regal 
Charader : For in the Parliament (4 Edw. 9.) Mortis 
mer^ Beresford^ Gurny^8i.c. had Judgment of Hz§^ Trw- 
fin given againft them, for the Death of Edward II, af- 
ter his Depofition. (a) Neither was that Judgment 
grounded fimply upon the old Opinion in Briton^ that 
Killing of the King's Father was Treafon : For though 
in fome Parts of that Record (as in the Judgment of 
the Lords againft Mortimer) the Words are, Tducbant k 
mort Seignor Edward Fere nofire Seignor le Roy qui ore 
efl^ fyc. yet in other Parts of that Roil of Parliament, 
he is ftyled, at the Time of his Murder, Seignor Liege ; 
and fometimes Rex^ as N. 6. The Lords make their 
Proteftation, that they are not to judge any, but their 
Peers ; yet they declare, that they gave Judgment up- 
on fome, that were not their Peers, in refped: to the 
Greatnefs of their Crimes ; Et ce per enchefin de murdre de 
Seignor Liege^ 8cc. And in the Arraignment of Thomas 
Lord Berkly^ for that Offence, the Record of his Ar- 
raignment is, Qualiter fi iielit acquittare de morte ipfius 
Domini Regis. And the Verdi&^ as it was given in Par- 
liament, (4 Edw. q. N. 16.) and the Record is, Qudi 
prdidiBus Thomas in nullo eft cidpabilis de morte praedicti Do^ 
mini Regis Patris Domini Regis nunc^ fyc. So that the 
Record ftyles him Rex at the Time of his Death; and 
yet every one acquainted with Hiftory knows, that his 
Son was declared King, and took upon him the Kingly 
Office and Title, upon the a 5th, or, according to WaU 
fingham^ 10 ^] anuarii ; and Ec/rrarflf 11. was not murder'd 
till the a I ft of September following. I have been the 
longer in this Inftance, though it were before the Ma- 
king of the Statute 25 Edw. ^. that it may appear, that 
this Judgment was not fingly upon this Account, that 
he was Father to King Edward III ; but they believed, 
that, notwithftanding the formal Depofing of him, and 
the pretended or extorted Refignation of the Crown, 
mention'd by the Hiftories of that Age ; yet they ftill 
thought the Character /^e^/«j remained upon him; and 

(a) The DoElor may he pleas'd to take vherely the Error ef that Chief Juftice « 

Notice, that the following Words are a full ccrreBed, and confe^uently the DoHors 

yinfwer to what he has tranfcrihed from Mijiakc in foliorfing him, 
CokeV Inftitutes, ( Defence, p. i iji. ) 

' the 

. Crownof England of ened,6^c, i2.f 

' the Murder therefore of him to, be no lefs, than Hig^ 
' Treafon; namely, the Killing of him, who was ftill a 
* King, tho' deprived of the adf ual Adminiftration of his 
^ Kingdom. " 

I SHALL now leave to the Reader and the Do£lor to 
make their proper Reflexions upon thefe PafiTages, and . 
try if they can reconcile them with his View of the Eng- 
lifli Confiitution. I mufl: exped indeed to be told, that 
the foregoing Extracts are taken out bf a Book of my 
Lord Chief Juftice Iiale\ to which the World is a Stran- 
ger j that where it is to be met witli, is a Secret, and 
hardly poflible to get Accefs to it ,- fo that the Authority 
of thefe Citations depends entirely upon the fingle Cre- 
dit of an unknown Tranfcriber ; and confequently it 
cannot-reafonably be expected, that much Weight (hould 
be laid upon them, in a Controverfy of fuch Moment. 
To thefe Objedions I can only anfwer, that I am well 
affured, thele Citations were faithfully tranfcribed, many 
Years ago, from one of the Folio Volumes of the Hiftory 
of the Pleas of the Crown^ written by my Lord Chief Jii- 
ftice Bale^ which was then in the Cuftody of his Grand- 
fon^ at his Seat in Gloucefierjhire : And this is all I can 
pretend to fay for their Authority ; with which if the: 
Reader is not fatisfied, I muft be contented to ftay for , 
my Vindication till they are publiflied, which, it is to be 
hoped, will be id a Ihort Time. I doubt not however, 
but thofe that are acquainted with my Lord Chief Ju- 
ftice Hj/e*s Writings, will be of Opinion, that they fuffi' 
ciently fpeak for themfelves ; or at leaft, that there are 
fuch Marks of Learning and Judgment in them, as evi- 
dently (hew, they are by no means unworthy of him. 
But whatever may be the Fate of thefe Extracts, I would 
not have the Doctor imagine, that we are deftitute of 
Proofs from other his Lordfhip's Writings, to manifeft 
his.Difapprobation of the Dodor's Notions. His (b) (^) This Book 
MS. Hiftory^ and Analyjis of the Common Law^ is in many ^rlmld! '"" 
Hands; in which {cap. 5.) fpeaking of Right acquired 
by Conquefl:, he has thefe Words ; But flill all this is in- 
tended of a Lawful Conquefi., by a Foreign Prince or State ; 
not of an Vfurpation by a SubjeB^ either upon his Prince^ or 
Fellow SubjeH ; for feveral Ages and Defcents do not purge 
the Vnlawfulnefs of fuch an Vfurpation. That is, fuch 
Vfurpers.^ though they may be Kings de Fa&o for many 

M m m Sue- 


2Z6 The HetediiarfTlight of the • 

Succeffions, yet' do not become Kings de Jure. An 
Opinion directly contrary td. the Do6tor's. Again; 
(c) The Manner of Acquefi of the Regal Title or Dignity.^ is 
either a Lawful Acquefi^ or an Vnlavpful one. A Lawful Ac' 
quefi of the Regal Title.^ is either^ jirfi.^ by Municipal Laws 
and Conftitutions of the Kingdom, which is no other but Here- 
ditary Defient^ according to the Laws and Cufloms of the De- 
[cent of the Crown o/England. An Unlawful Acquefi.^ which 
is by Vfurpation^ is when a SubjeSi JhaJl inz'ade the Right of 
the Crown^ from him that is Rightful and Lawful Heir there- 
unto; and was done by King Stephen upon Maud; by John 
upon his Nephew Arthur ; by Henry IV. upon Richard II ; 
by Henry V and VI, upon the Line of Yoik ; by Rich. III. 
upon his Nephew. And herein is conjiderahle.^ what Power the 
I^w allows to fach VJurpers.^ and what it denies. Here it 
is plain, the Doctor's Kings de FaBo are called Vfurpers ; 
and though he fays, the Law allows them fome Things ; 
that muft be underftood only of fuch Things, as are ne- 
ceffary for the Order of Government, and not at all in- 
confiftent with the Rights of the King de Jure. 

The Do6lor has now done with his Modern Lawyers : 
And in Requital, I (hall fet before him fome Opinions 
and Practices of fuch as are ancient; and that no pro- 
per Means may be omitted for his Conviction, I (hall 
Ihew him, that the Laws themfelves teach us quite a dif- 
ferent Doctrine, than what he has advanced in his late 
Accounts of our Conltitution. 

I T is a known Po(ition of the Doctor's, which is vi(i- 
ble in every Page of his Writings, (d) That a King de 
Fado has all ' the Powers., Privileges.^ and Prerogatives of a 
King de Jure. But the Pradices of the great Councils in 
King Stephen\ and Henry I V.'s Reigns, fufificiently (hew, 
they were of contrary Sentiments : For when the Bi- 
fhops and Clergy, in a general A(rembly, were prefs'd 
by King Stephen to feCure the Succeflion to his eldefl: Son 
Eujiachius ; they abfolutely refufed it, as an A6t of the 
higheft Injuftice to a Prince, that had a better Title. Is 
it not then evident, that the elde(t Son of a King de Fa&o 
was not then thought to have a Right to fucceed his Fa- 

(^XjslV. xi. f. 3. loth hy 0',tr Ltves and Lan>jiers, to he lodg- 
ed) The Sovereign AHthority ef the ed in the King for the Time leing ; and 
Englilh Government, ai well Legijlative oi that the Allegiance of the SuhjeSl has been 
Execfilive, hath been ever (tdnoTfledged, due to him j^nd to him alone. View^/>. 52. 

"^ ' ther 

Cr&toii- 0/ Eiigland afferted, &c. iif 

ther in the PoiTeflion o*f the Crown ? But nothing more 
clearly proves this Defed of Title in the liTue of Kings 
de Fa&o, than the Parliamentary Provifions made for 
the Succeffion of Henry IV.'s Children. In the fifth Yeat 
of his Reign, the Lords in Parliament fwore to the Suc- 
ceffion of his eldeft Son, and his Heirs : This l^bwevei: 
did not fatisfy him; and therefore two Yeats after, iii 
Ad: pafTed for Settling the Crown on his Sons, and their « 

IJfue Male ; arid this was undoubtedly, then looked up- 
on, as a great Point gain'd ; but ftill it was not to Hen- 
r); IV.'s Mind; fdr by this ASi the" Female Defcendantfe 
from him and his Sons, were excluded, with their" Iffue : 
About (e) half a Year after therefore he gets the Parlia- (0 RotPari, 
ment in a good Humour ; arid prevails with them to fet-^^^^^/^J 
tie the Succeffion of the Crown upon him, and his Sons,m"'''.Aa3 
and their Heirs; whereby their Daughters, for Want ofromlvni, 
Male Ifllie, were made capable of the Succeffion. Now ?• 4^^. 
a King de Jure never wanted thefe Parliamentary Settle- 
ments J the Common Law of England having effedually 
provided for the Succeffion of his Iffiie; and if Hen. IV, 
had been a King de Jure^ that is, one that poflefs'd the 
Crown by Lineal Defcent, and Right of Blood ; as he 
would have had no Occafion for fuch A&s of Parliament ; 
fo we may be confident, none of that Nature would ever 
have been denied. 

In the 2 1 ft of Richard IL a Petition was prefented to 
the Parliament, for the Reftitution of the Spencers ; and 
an A6t pafs'd accordingly ; for which one of the Rea- 
fons now upon Record, was this which follows: wz. 
(f) Becaufe Edward II. was livings and true King ; and held in (/) RotParl. 
Trifon by his Subje&s^ at the Time of that very Parliament of ii,6^\ '^' 
I Edward III. when the Judgment againft the Spencers vpojs 
declared good. Now here wd have an exprefs Parliamen- 
tary Acknowledgment, that a King may retain his Au- 
thority after the Lofs of his Crown ; and that Laws made 
by the Ufurper, who gets into his Throne, do nqt bind 
the Rightful SuccefTor. The Doctor could not but be 
fenfible, that this was an Objedtion of Importance ; and 
therefore to give him his Due, he has taken fome Pains 
to remove it. And, . ' 

Firji^(g) He fays. This A& of Confirmation of the Judg- ^£l,^j^l^3r 
ment againfi the two Spencers ( 1 Edward III.) was not de- p. 58. 


• 228 ^ 7 he Hereditary Right of the 

eland 'Void by the 1 1 Richard II. hut repealed ; and therefore 
'ualid^ until repealed. 

But this Anfwer will not do the Bufinefs ; for from 
the Paflage before recited out of the Records of a i Ri- 
chard II. 1 do not pretend to inferr the immediate Nulli- 
ty of the 1 ft of Edward HI. from the Time of the making 
of it ; but only the Invalidity of it, with refped to Ri- 

, chard II. 's Right to declare it void, whenever he pleas'd. 

And therefore it is not material to fay, he never ufed 
this Power ; for the proper Queftion is^ Whether he had 
not a Right to ufe it ', which we fee was plainly confefs'd 
in ,open Parliament. The Dodor may remember, I 
choofe rather to (ay, Mis of Vfurpers are voidable^ than 
mid ; and therefore, tho' none of the A&s made by Ed- 
ward III. while his Father was alive, had ever been de- 
clared 'void ; yet it would have been ftill true, that Ri- 
chard II. had Authority, as King de Jure^ to exercife that 
Power ; which fufficiently (hews the Difference between 

X a King de Fa&o and a King de Jure. 

Secondly.^ The Dodtor urges, that the ai Richard II. 
was repealed by the i Henry lY. To which Anfwer the 
Learned Bifhop Stillingfleet^ fome while fince, was con- 

^^tlcS-^ tented to make the following Reply, {h) The Parlia- 

eerning the jjjent of 5 1 Richard II. xpas not^ fays he, legally repealed ; 

J^kt/^,S^, for Richard II. was alive^ and in Prifon^ when Henry IV. 
repealed the Parliament of 1 1 RichardJI. And befides this, 
I Henry IV. was declared void by the i Edward IV. 

(»! Rot. Pari. For in that Parliament, (i) it is ordained.^ and declared^ and 

I Ed^v. 4. ejlablijhedy that all Statutes.^ A&s., and Ordinances heretofore 
made^ in and for the Hurt^ JDeJlru&ion of the Right and Title 
of the late King Richard, and againji his Royal Dignity and 
Oo'vernance^Sic. Jhall be 'void^ and betaken^ holden^ and repu- 
ted 'void^ and for nought^ adnuUed^ repealed^ remked^ and of no 
Force^ Value^ or EffeB. Now certainly it cannot be denied, 
but the Repealing of the whole Parliament of the a i 
Richard II, and that during the Time of his Imprifon- 
ment, was an A&: againft his Right^ Title, Royal Dignity^ 
and Governance; and confequently it is adnuUed by the 
Vv^ords of the Record now recited. 

I PROCEED now to put the Doctor in mind of fome o- 
ther Declarations in Parliament, no lefs clear and expref- 
five againft his Notions of our Conftitution. It is an evi- 
dent Conlequence, which neceffarily flows from the Do- 

Crovjn of England afferted, &c. izp 

dor's Pofitions, that the DIpofTefs'd King cannot juftly 
make War upon the Ufurper of his Dominions, for the 
Recovery of them ; that he has no Right to the Alle- 
giance of the Inhabitants of thole Countries ; and confe- 
quently, that for tiiem to affift him in fuch Attempts, is 
downright Rebellion ; and renders them obnoxious to the 
Pains and Penalties of it. But the direct Contrary is af- 
ierted in the Records of Parliament, which I humbly re- 
commend to the Doctor's Confideration, in the enfuing 
Pad ages. 

When Richard Duke of Tork had been attainted by 
Henry V\. at Coventry', the Parliament Roll (k) fays, W Rot.Parl. 
That the Jaid Noble Prince Richard Duke of York, ufing the Sca. 7^T 
Benefice of the Law of Nature^ and fufficiently accompanied 
for hU Defence and Recovery of his Right to the Crown of 
thif, Realm^ came thereunto^ not then having any Lord therein 
above him^ but God ; and in the Time of a Parliament holden 
by the/aid Henry, late called King Henry VJ, the 6th Day 
of Odiober^ the :i,()th Tear of his faid Vfurped Reign ; in^ 
tended to ufe his Right^ and to enter into the Ezercije of the 
Royal Power^ Sec. us it was Lawful^ and according to Law^ 
Reajon^ and Juftice for him fo to do. And thereupon fhewd^ 
opend^ declared^ and proved his Right and Title indefeajible^ 
whereunto it could not be anjwer^d^ &c. And in the fame 
Roll, (Se^. I o J it is affirm'd. That the Commons having 
evident Knowledge^ that King Edward IV". was in Rightj 
from the Death of his Father^ very jufi King of the Realm of 
England ; and on the 4^/7 Day of March in lawful Poffef- 
Jion of the fame ; did dejire it might be ena&ed^ That the Taking 
of Poffejfion.^ and Entree into the Ezercife of the Royal Eft ate.^ 
Dignite.^ Reign^ and Governance of the faid Realme ©^England, 
and Lord/hip of Ireland, of our faid Sovereign Liege Lord 
King Edward IV. the feid \th Day of March, and the 
Amotion of the faid Henry, late called jfCin^ Henry VI. from 
the Ezercife^ Occupation.^ Vfurpation.^ Intrujion.^ ^^^^"5 ^^^ 
Governance of the Jame^ done by our feid Sovereign.^ and Liege 
Lord King Edward IV, the fell \th Day of March, was^ 
and is rightwife., lawful^ and according to the Laws^ and Cu- 
jloms of the faid Realm ; and fo ought to be taken.^ holden.^ re- 
puted.^ and accepted. And a little after, {Se^. ^1.) it is far- 
ther added ; Where certain Perfons of evil., riotom.^ and fedi^ 
tiom Difpojition., joyed in Rumour.^ and rebeUiom Novelrys.^ ad- 
hering to Henry IV, late in Deed.^ and not of Right King of 

N n n England, 

250 The Hereditary Right of the 

England, after his unrighteous^ unlawful^ and deteftable Vfur- 
fation^ and Intrujion^ ^g^^^fi his Faith^ and Ligeance^ upon 
King Richard II. his (I) righteous^ true ^ and natural Liege 
Lord^ tirannoufly murdered^ with great Cruelte^ and horrible 
Violence^ in an outragiows heady Furj^ the Right Noble^ and 
Worthy Lords John Mountague late Earl of Salisbury, and 
Thomas late Lord Le Delpenfer, and other true Subje^s, and 
Liege Men of the faid King Richard, after his Deceafe^ con- 
tinuing their Faith^ and Ligeance^ according to their Duty to 
God, and to the Laws^ and Cufloms of the Realm 0/ Eng- 
land, to Edmund Mortimer, then Earl of March, next 
Heir of Blood of the fame King Richard, and in Right af- 
ter his Deceafe to have fucceeded as True^ and Righteous 
King^ &c. And whereas Judgment was given againfi them 
in a pretenfed Parliament^ &c ; it is ordeined^ that the feid 
Judgment be annulled and void. And to the lame purpole 
is this, which follows : (m) The Petition Ojf Thomas Lum- 
ley Knt. Cojin and Heir to Rauf Lumley Knt. &c. Jhew' 
eth^ That where the faid Rauf and other were cruelly murdered 
and Jlain by Henry IV", late inDeed^ and not of Right King 
©/"England, for the true Faith^ Duty, and Ligeance^ that they 
bore to the Right Noble Prince King Richard II. in his Days^ 
and after his Deceafe^ unto Edmund Mortimer Earl of 
March, next Heir to the feid King Richard, &c. and that 
in a Parliament holden the id Tear of the feid Vfurped 
Reign^ &c. a Judgment ofTreafon was given againfi the feid 
Rauf, &c. Wherefore pleafe it your Highnefs tofiably/h and 
enaH the feid Judgment to be void^ &c. Which was done 
accordingly ; that Petition being read in open Parlia- 
ment, and by the Affent of the Lords and Commons ap- 
proved of by the King. 

Jam perfuaded, had the Doctor taken Notice of thefe 
PafTages in our Records, (for he muft allow me to believe, 
they efcaped his Obfervation) he had entertain'd diffe- 
rent Thoughts of our Confiitution from thofe, which he 
has been pleas'd to publifli ; and yet a Perfon but mode- 
rately skilled in our Laws, will be able to make many 
Colledtions from them to the fame purpofe. 

(I) From whence it ap-pears, hew true doth not pretend, that his Ancefton 

it is, vhitt the DoUor has affirmed, That were Kings of Right, whilft the Three 

kitho' Edward IV. called the Three Her*- Henrys were Kings in Deed. Fiew, p. 52. 
rjs do more than Kings in Deed, j^et be (>n) Rot. FarJ. i Edw, 4. Seft. 37. 


Croivn 0/ England afferted, &c. 131 

1 1 is a Maxim of the Law of England^ (n) That the 
King cannot be in a worje Condition than a Private SubjeSi ; 
that is, it cannot be fuppofed, that the Law has taken leiV 
Care of -his Rights, than of thofe of his Subjects : Now 
in the Cafe of Private Men nothing is more remarkable;, 
than the great Concern of our Laws, to lecure their Pro- 
perties, and to procure them Juftice and Satisfaction, 
when they are wronged; and therefore there is not a 
more eftabliihed Rule in Judicial Proceedings, than this, 
that the Law favoureth Right^ e'uen before PoJfeJ/ion ; upon 
which a (o) Gentleman of eminent Knowledge in his Pro- 
feffion, has left us the following Comment. When two are 
in an Houfe or other Tenements^ and one lays claim by one Ti^ 
tle^ the other by another Title ; the (p) Law adjudgeth him 
in Pojjejfion^ that hath a Right to the Tenements. We are in 
Juftice therefore bound to believe, according to the Rule 
before mention'd, that the King's Rights are at leaft as fa- 
cred in the Eye of the Law, as the Properties of Subje6ls ; 
and confequently, that the Law cannot poffibly coun- 
tenance the Doctor's Pofitions, which manifeftly favour 
Wrong againji Right. 

One would think, if the Do6^or's Notions were at 
any time in Efteem, we fhould meet with fome Proofs of 
it in Henry VI, and Edward IV.'s Reigns, when Subjeds 
had moft occafion to make ufe of them in thofe frequent 
Turns and Revolutions of Affairs ; yet nothing to this 
purpofe has he been hitherto able to produce, from the 
Hiflories of thofe Times; but 1 think I may fay, we 
have good Evidence to fhew, that they were flighted and 
condemned even by Kings de Fa&o themfelves, and their 
Parties. When Henry VI. recovered Pofleffion of the 
Kingdom, he treated thofe that had adhered to Ed- 
ward IV. as Traitors and Rebels ; he reverfed all the 
A&s of that Prince, as illegal, and of no Authority; 
and whenever he had occafion to mention him, it is in no 
better Terms, than thofe of Traitor and Vfurper ; (q) he 
ftyles him his Great Rebel^ who had lately pojfejfed the Crown 
and Regal Dignity by VJurpation^ and was only de Fa£to and 

(■«) Tear-Booh, ^lE-iw.i^. Term.Pafch. J«fiice Hale applies this Rule to the Qfe 

^ and 9 Edw. 4. 2. Term. Pafch. oj King de jure and de Fa£lo. See ke- 

(0) Sir Hen. Finch on Lam. B. i. c. 3. jare, p. 222. 
p. 29,45. (9) Rymer. Acta Publica. Tom. li'. 

(p) it ii ehfsrvabley that nrf Lord Chief p. 680, 696^ 705, 706. 


231 The Hereditary Right of the 

(r) Rot.ParL "^^ ^^ J"^^ ^^"<?- ^^^ (^^ ^" the I ft of Umry VII. it 
I Hen. 7. is declared in Parliament, th^X. Henry VI. had been at- 
tainted of High-Treafon^ contrary to due Allegiance, Then 
it teems Edward IV, even vvhilft he was upon the 
Throne, owed Allegiance to Henry VI. when he was 
out of it ; a Doctrine utterly inconfiftent with what 
the Do6lor teaches us. Let us now fee, whether it 
may be difcover'd, from the Behaviour or Writings 
' of any of the Friends and Adherents to Henry VI, that 
they were influenced by fuch Principles, as the Do- 
6tor commends. And I fhall particularly take Notice of 
Sir John Fortefcue^ and Dr. Morton,^ afterwards Archbijhop 
of Canterbury, Lord Chancellor^ and Cardinal', Men emi- 
nent in their Generations^ for their Wifdom, and Know- 
ledge of our Confiitution. 

S I R John Fortefcue was Lord Chief Jitflice of England, 
under Henry VI, when that Prince was driven from his 
Throne by Edward IV ; but no fooner did that Calami- 
ty befall liis Mafter, and the fatal Battle of Towton^FM 
O) Sir John ^in which Sir John was (s) prefent) had fixed the Crown 
^^utntdM on Edward's Head, but he retired out of England with 
T^'^jfiT' ^^^ Deprived Queen, and the Unfortunate Prince her 
nSi'ef'in Son. In this voluntary Exile from his Native Country 
Towton-"^ he continued feveral Years, with fo little Senfe of his 
Field. T/We Duty to E-dward^ though now King de Fa&o^ that he not 
f Edw.t.' only fcorn'd to make any Application to him for his Par- 
^ 20. don and Favour, but by Seditious Writings againft his 
Title, he made it his Bufinefs to animate thofe, that 
were diiiifFefted to him. Afterwards indeed he was 
contented to make his Submiffion; and his humble Pe- 
(t) RotPaii. tition is to be met with in the (t) Records of Parliament ; 
13 E<iw. 4. ^^^ YiQ could never be brought to this Compliance, till 
Henry VI. and his Son were both dead ; and confequent- 
ly the Houfe of Lancafter entirely extinguifhed. 

What now can be pleaded in Defence of this great 
Man ? A Perfon fo eminently skill'd in the Laws of 
his Country, could not certainly be ignorant of the Eng- 
lijh Conftitution. If, as the Doctor affirms, he was 
bound by it to pay his Allegiance to the King de Fa&o ; 
furely King Edward was the only Perfon, that could lay 
Claim to it on that Account ; for he alone was in Pol- 
feffion. Shall we fay then, that he was g^uilty of Rebel- 

Crdivn of England afferted, &c. 255 

lion, in Oppofing his Lawful Prince, and not making an 
early Submiffion to him ? I am afraid the Doctor will 
not readily approve of this Sentence ; becaufe I find him 
(«) citing him with great Reverence, as an Author of («) Br. Hig- 
Confequence to his Caufe ; and yet I know not how we f^'E^Sh^ 
lliall be able to acquit him, vvhen we have thorowly con- G)«/?. p. ps, 
lider'd all the particular Circumftances of his Behaviour ; 
and our whole Charge againft him is fully laid before the 
Reader. In the mean time, I will be bold to fay, Alh^ 
gtarice he did indifpenfably owe to one King or other, ei- 
ther to Edward in PoflTeffion, or to Henry that waS 
out of Pofifeffion ; for no Natural-born Englif/man can 
put himfelf out of the Condition of a Subjed; or dif- 
Iblve thofe Obligations of Duty and Obedience, which 
commence together with his Life : If it were fo, Sub- 
jeds might quit their Country, and tiransferr their AUe^ 
glance to what Prince they pleafed, according to the Exi^ 
gencies of Times, and their particular Humours and In- 
clinations; but the Laws of England will allow of no 
fuch Liberty ; and therefore when Dr. {x) Story pleaded (-v) Cam^ 
/upon an Indidlment of High Treafon in Queen Eliza- tf%»nm-. 
hews Reign) that the Judges had no Fower over him ; for zabeth, B. a. 
that he was a fiporn SubjeB to the King of Spain ; he was ' ^'^^^' 
condemn d according to the ordinary Form of Nihil dicit ; be^ 
caufe no Man can Jhake of his Country^ wherein he was born; 
nor abjure his Native Soil or Prince at Pleafure ; and fo he 
fufferci as a Traitor. It is not therefore to be doubted of^ 
biit Sir John Fortefcue was fenfible,he was ftill under the 
Obligations of an Englijh Subjedt ; and fince it is cer- 
tain, he followed the Fortune of Henry VI, and adhered 
to his Intereft ; it is to be prefumed^he believed,that he was 
the only Rightful and Lawful King, though forced from 
Tiis Throne ; and not Edward^ who was in full Pofleffion 
of it. 

W E have the fame Account in our Hiftories given us 
of Dr. Morton ; He was a Man (fays (y) an eminent Au- O) ^ Tho- 
thor) of great natural Wit^ very well learned, arid hohoUra' Life of A- 
ble in Behaviour. He had been faft upon the Part of King ^^"^ -' 
Henry VI, while that Part was in Wealth; andndthltjfe left 
it not^ nor forfook it in Woe ; but fled the Realm with the 
Queen and the Prince^ while King Edward had the King 
in PrJfin ; and never return d home^ but td the Field ; which 

O o o bein^ 

234 '^^^ Hereditary Right of the 

being irrecc/verably loft^ King Edward did not only (z) offer 
him hU Pardon^ but invited and vpoed him unto his Ser- 
qjicBf &c. 

What Apology now can be made for thefe Gentle- 
men ? Their Friends, it is true, think it an honourable 
Part in them, to preferve their Fidelity to their Prince 
and Benefactor, amidft his Misfortunes ; but what then 
will become of our Conftitution ? That, fays the Dodor, 
cancels all Obligations to Gratitude ; requires them to 
defert a finking and hopelefs Caufe, and demands their 
Allegiance for his greateft Enemy, who, in their Opi- 
nion, fills his Throne by Violence and Injuftice. Thus 
we fee, two of the moft confiderable Friends to Hen^ 
ry VI, whofe beft Title has been hitherto fuppofed to be 
his Pajfeffion of the Crown^ perfever'd in their Loyalty to 
him for near ten Years, though he was a Prifoner mod 
of that Time, without the leaft Hopes of ever mending 
his Condition. Is this a Sign, that the Doctor's Princi- 
ples were underftood in thofe Days, when of all others, 
he would perfuade us they mofl flourifhed ? But Sir John 
Fortefiue has yet more to anfwer for ; he did not only 
withdraw from liis Country, and refufe to fubmit to the 
Pofifeflbr of it ; but (a) accepted of the Title of Chancellor 
of England, though granted him by a DepofedKing ; and 
which is ftili worfe, by his Writings he openly afferted 
the Right of Henry VI, and the Unlawfulnefs of obey- 
ing Edward IV. We have ftill extant, in the {b) Cotton 
Library^ his Defence of the Houfe of Lancafter againfi that 
of York, in which he labours to prove, by fundry Ar- 
guments, that the fole Right to the Crown of England^ 
as well by Lineal Defcent, as by the Refignations of the 
Houfe of Tork^ was then entirely in King Henry : He 
pretended that (c) Philippa (from whom tlie Families of 

(z,) Dr. Morton had been attaint- paration on account of the Oaths, p. 21, 

ed in the Beginning of King Edward'/ 22, 26.) having feen this Piece of Sir 

Reign ; but did not petition for his Pardon John FortefcueV in Defence of the Houfe 

till the 1 2th. Vide Rot. Par], i Edw. 4. of Lancafter, has been pleafed to give it 

& 1 2 Edw. 4. f. 27. Jo much Credit, as to believe what he affirms 

(a) Mr. SeldenV Preface to Sir John concerning Philippa'/ Illegitimacy. But 

Fortefcue, de laudibus I.egum Angliae. the fame Author having confuted that Sto- 

, Dr. HigdenV Fiew of the Conflituiion, ry, at large, afterrrards, in his Defence 

p p8. of the Houfe of Tori, (rfhich I am neU 

(Jb) Bibl. Cotton. Otho. B. i. ajfured his Lori^ip had alfo in his Hands) 

(f^ The Learned Bijhop Stillingfleef, / rvijh he had thought fit to have acquainted- 
Unreafonablenels of a New Se- the World mh-his Miftaie. 



(Jn hii 


Cro'wn ^/'England ajferted, &G. 23^ 

Mortimer and Tork derived their Claim to- the Crown j 
was not owned by the Duke of Clarence for his Daugh- 
ter ; that by the Law of England the Crown cannot de- 
fcend to a {d) Woman; and lartly, he beftows no better 
Appellation upon King Edward^ than that of VJurper j 
and exprefly declares, he held the Crown no otherwife^ 
than by Violence and Injuftice. Can better Arguments 
be defired than thefe, that Sir John Forte/me did not ap- 
prove of the Doctor's Notion ? For would any Man take 
the Pains to prove, that a Prince out of the Throne is 
his only Lawful Sovereign, who yet is perfuaded, that 
Allegiance is wholly due to a King de FaBo? Befides, 
his Book in Praife of the Laws of England, was drawn 
up in the Time of his Exile, entirely for the life and 
Service of the young Prince, eldeft and only Son to Hen^ 
ry VI, that he might be timely inftruded in the Laws of 
his Country, of which he looked upon him as the only 
Rightful Inheritor, after his Father's Deceafe. For this 
Reafon we find him addreffing himfelf frequently to that 
young Prince in the moft refpedful Language, as to the 
Heir Apparent of the Crown ; Tcm, fays he, moft (e) re- 
nomied^. (f) divine Prince^ (g) who in time are to go-vern the 

Kingdom of England (h) I conjure you again andagain^ 

that you learn the Laws of your Father^ Kingdom^ to whom 
you are to fuccecd ; with feveral other Paffages to this 
Purpofe. Now it is impoffible to conceive, that the 
Author of thefe Expreffions could intend them for any 
other Purpofe, than as Compliments to a Prince entitled 
to the Inheritance of the Crown by the Laws of Eng- 
land: For upon what other Account could he tell 
him, he fhould one Day govern England, and ficceed his 

(d) For nhkh, anmng others, he gives argenhim Sacris unftis manibus Regum 

this extraordinary Reajoft, viz. becahfc a AiigJia: in die Pafchs Divinorum Tcm- 

Qutm is not qualified by the Form of 'pore Cquemadmodutn Reges AngJis: an- 

Anointing her, ufed at her Coronation, to nuatim facere folent) taftum devotl- & 

cure the Dijeafe called the King's Evil. oblatum, Spafmaticos & Caducos cu- 

His Argument being remarkable upon this rant ; quemadmodum per annulos ex 

Occafion, it may be fome Entertainment to diflo auro feu argento faflos, & digitis 

the Readers Oriofity to have a f^icw of it. hujufmodi morbidorum impoffros, mul- 

Item Regibus Angliae Regali ipfo officio tis in mundi partibus crebro ufu exper- 

plura incumbunt, qux naturs muliebri tuni eft. Quas gratia Reginis non con- 

adverfaiitur. Regcs Anglix in ip- fertur, cum ipfce in manibus non ungan- 

fa Un£lione fua talem calhus gra- tur, &c. 

tiam infufam recipiunt, quod per tattum (f) Fortefcue de Laud. Leg. Aug. c. 5. 

manuum fuarum unclarum Infe<aos mor- (7J Ibid, c 21. 

bo quodam, qui vulgJ Regius morbus (g) Ibid. c. 4. 

appellatur, mundant & curant, qui alias (h) Ibid. c. 5. 

dicuntur incurabiles. Item aurum & 


236 The Hereditary Right of the 

Father in his Kingdom ? Unlel's we are to fuppofe, S\\-John 
fpoke all this Prophetically, as an Event which ihould 
certainly come to pafs, without any Regard to his pre> 
fent Right. I conclude therefore, that nothing can be 
more evident, than the Contrariety between this Gen- 
tleman's Notions of our Confiitution^ and the Doctor's. 
Sir John Fortefcue thinks it his Duty to adhere to a De- 
pofed King againft the PoflfefTor of his Throne : He af- 
ferts his Right in the Field with his Sword ; in his Re- 
tirement, with his Pen ; and interprets the Laws of his 
Country (in which his Learning has been always highly 
efteem'd) for a King de Jure againfi a King de Fadto. To 
all this let me add, That when he made his Peace with 
King Edward^ he retradted all that he had written againfi: 
his Title; and aflferted his Right with the fame Zeal 
and Vehemency, that he had, before. King Henry VVs; 
(0 Preface to for whlch hc is highly commended by (z) my Lord Chief 
tm^Sht Juftice Coke^ as an Inftance of his great Sincerity and 
Refm-ts. Love for Truth. Now a properer Occafion than this 
could not be ofFer'd him, of acknowledging his former 
Error in paying Allegiance to a King out ofPoffeffion] and 
at the fame time, he could not in Juftice decline the 
Opportunity of vindicating the Authority of Kings de 
Fa&o^ were there any Foundation in Law for fuch an 
Affertion, or had he been perfuaded of the Reafonable- 
nefs of it. But to our great Surprize, we find nothing 
in his Retradation to this Purpofe ; it is ftill extant, and 
(^)BgCot- maybe perufed, by thofe that are curious, in the (k)OA' 
k"i. This ton Library ; but whoever gives himfelf the Trouble, 
f/'^f John w^^* b^ fenfible, that the whole Defign of that Book is 
Fortefcue is to prove the Right of Edward IV, from his Lineal De- 
Ttclfd!" Icent from the Duke of Clarence, and Nearnefs of Blood to 
Rot. Pari. Richard II, without any regard to his Pofifeffiom 
»3 w. 4. There is one Thing more, that muft not be forgot- 
ten in this Place, though I had before Occafion to take 
Notice of it; and that is the remarkable Opinion of the 
Judges, together with Sir Jeffry F rimer. Sir Heneage Finch, 
Sir Edward Turner, and Mr. Wadhani Wyndham, upon 
the Tryal of the Regicides. It was refolved by them, 
that the Indictment for the King's Murder fhould con- 
clude. Contra pacem nufer Domini Regis j Coron. ffy Viznitat. 
fuas, necnon contra pacem Domini Regis nunc, Coron. ^ Dig-^ 
nitat. fuas. Aad they likewife agreed, that though King 

^ Charles 

Crtfwn <?/England afferted, &c. ^37 

Charles II. wa^ de Fa6l:o ke^t out of the Exercife cf the 
Kingly Office by Traitors and Rebels^ yet he was King both de 
Fadfo and de Jure. This Account is given by Sir John 
Kelyng in his Reports [p. 11, 15.] publifh'd with the AU 
hwance and Approbation of my Lord Chief Jufiice Holt, Mr, 
Jufiice Powell, 5ir Littleton Powys, and Sir Henry Gouldf 
Here I think we have a different Notion of a King de 
Fa&o^ from what the Doctor would teach us ; and it is 
evident from it, that neither the Title of King^ nor the 
Allegiance of Subjects, is upon any Account due to an 
Vfirper. . .. ,■ 

T H u s I have prefented to the Reader's View fome 
Paflages taken from our Laws, and certain Teftimonies 
alfo of ancient Lawyers, which clearly prove againft 
Dr. Higden^ that Kings de Fa&o were never confider'd in 
our Conftitution^ as Juft and Legal Proprietors of the 
Kingdoms they poflefled. 

The Do6tor having now executed his Original De^ 
fign, had nothing elfe to do, but to take his Repofe, and 
refledt with Pleafure upon his Performance : But fuch is 
his Good nefs, tho'he had entirely fatisfy'd himfelf, and 
needed no Supply of ReafonS to quiet his own Con- 
fcience, he was however willing to add fome frefh Ob- 
fervations for the fake of his Readers. Upon fo good an 
Account he will now undertake to prove, that the Holy 
Scriptures fpeak conformably to the Laws of our Coun- 
try, and highly approve of his Englijh Conjiitution. Now, 
thV I cannot abfolutely concurr with him in this AfiTer- 
tion ; yet fo far I am ready to agree, that his Doftrine 
is moft certainly to be found in Scripture^ and did emi- 
nent Service in two confiderable Inftances ; for this was 
Shimeis (/) Plea, when he curfed David; The Lord hath ib^^^nu 
deliver d the Kingdom into the Hand of Abfalom thy Son ; 
that is, Abfalom is now in full PofTeffion of thy Throne, 
Sind confequently God has rejeded and depos'd thee., 
Here we have a clear Proof of the ancient Authority of 
the Doctor's Principle, which his Adverfarics will never 
pretend to wreft from him. The other is that of 
{m) Eu/hai^ who being reproach'd by Abfalom fov having ('")'^^'i^-. 
David his Friend, juftifies his Delertion by the fame Rea- 
fon ; Nay but whom the Lord^ and thU People^ and ail the Men 
of Ifrael choofe^ His will I be^ and toith Him will I abide. 

By this honeft Infinuation Hujhai was immediately admjt- 

P p p t6 


p. lOI. 

238 7he Hereditary Right of the 

ted Into Abfalorns Council ; that deluded Prince could 
not fufpeft the Fidelity of a Man, who came into his 
Intereft upon fo pious and religious a Motive; and the 
Doftor knows the Event. 

But the Dodor will not allow, that Hu/hai err'd in his 
Principle ; for he is confident, that God has always re- 
quir'd Obedience, as an indifpenfable Duty, to thofe 
who were in Power ; and that the Scriptures furnifh us 
with many Inftances to that purpofe. And, 
(a) rim, Firj}^ He tells (n) us, That the Jews Ihed in SuhjeBion 
to the Midianites, the Moabites, and other neighbouring Na- 
tions^ when they were fubdued by them. Now what real 
Advantage the Dodor can derive from hence, is a Que- 
ftlon : Can any one doubt, but Submiffion may be 
lawful even to unjuft Conquerors, when once they have 
acquired a full Power and Dominion over a People, and 
when Refiftance is utterly vain and imprafticable ? But 
Submiffion is one thing, and a Recognition of their Right 
another : And the latter may be often unlawful, when 
the firft is manifeftly lawful. Thus the Cavaliers fubmit- 
ted to Oliver Cromwell ; they 43ay*d Taxes to him ; and 
endured his Tyranny and Oppreffions ; becaufe they faw 
no other Remedy : But furely they did not acknow- 
ledge the Lawfulnefs of his Government, nor own he 
had a Title to their Allegiance. For the fame Reafon, 
why might not the Jews live in Subje&ion to the Midia- 
nites and Moabites ? Were they not fubdued by them ? 
Is not this confefs'd by the Dodor ? Was it then ne- 
ceflary they (hould die, rather than part with their Li- 
berty ? Or will he at laft be fo gracious, as to allow 
Captives to compound for their Lives, by entring into a 
State of Servitude ? 

Secondly^ Admitting the Midianites and Moabites were 
unjuft AggrefiTors, and reduc'd the Jews under their Obe- 
dience by a cauilefs War, (which the Doctor will not 
be able to provej it might however be lawful for the 
y^TTj-, not only to live in Subjection, but alfo to pay an 
entire Obedience to them, as their Rightful Governors: 
For poffibly they were at their own Difpolal, and might 
give up their Rights and Liberties, as they faw occafion ; 
and then it was reafonable, they (hould do fo in thofe 
Extremities, when the Advantage would be very con- 
fiderable to themfelves, and no Injury thereby done to 


Croi})n d)/' England ajferted, &C 2*5p 

anctber. Or elfe it may be fuppos'd, that their Prince 
or Ruler being in the fame ill Circumltances with them- 
felves, joins with them in this Surrender and Dedition j 
and then the Subjeds are fufficiently juftify'd by the Con- 
fent of their Sovereign. But had the Matter been other- 
wife ; had the conquer'd King of the 'Jevps refus'd to 
give up his Right, and G o d's Authority no way ex- 
prefly interposed in the Cafe ; would it then have been 
lawful for the Jews to have made a Compliment of their 
Allegiance to the Midianites and Moahites againft the Will 
of their Prince ? This is the Queftion, to which the 
Doftor's Adverfaries delire Satisfaction ; but this, it is 
to be fear'd, they will never obtain. For let the Doctor 
ftate the FaCt, as he pleafes ; let it be granted, that the 
Jixvs did actually transferr their Obedience to thofe Na- 
tions, without the Leave of their Rightful Sovereign ; 
how does it appear, that this was an honeft and lawful 
Action ? Does the Scripture exprefly aflure us, it was 
fo ? No, that is not pretended : How can we know 
it then ? Why, the Doctor tells (o) us, that nothing (6) riar; 
appears in Scripture to the contrary : That is, whenever ^' ^°^' 
an Action is not condemned by the Holy Scriptures, we 
are at liberty to think it Legal and Imitable. Thus it 
is allowable to put a Trick upon a Father, and defraud 
a Brother, as Jacob did to IJaac and Efau ; and thus we 
may tell a Lye upon a Motive of Compaffion, as the 
Egyptian Midwives did to Pharaoh ; becaufe the Scri- 
ptures do not pafs any Cenfures upon thofe FaCts : And 
undoubtedly, for the fame good Reafons the Doctor's 
Readers may honeftly fuffer themfelves to be impos'd 
on by him ; for furely it cannot be a Sin to be cheated, 
if it be none to cheat. 

What has been faid in Defence of the Jews^ for their 
peaceable Behaviour under the Moabites and Midianites^ 
will ferve as well to juftify their Obedience to the Egy^ 
ftians^ and other Conquerors, without the Affiftance of 
the Doctor's Principle. But in the particular Cafe of 
their SubjfeCtion to the Kings of Babylon^ we have fome- 
thing farther to urge in their behalf; and that is, the ex- 
prefs Command of Almighty Go d, by Virtue of which 
tliey were oblig'd (p) to bring their Necks under the Take (/,) jcrem. 
of thofe Princes^ and ferve them and their People : For 
unlefs we will difpute G o ds Supreme Dominion and 


xxva. 12. 

240 7he Hereditary Right of the 

Authority over the World, we mUft allow his Nomina- 
tion alone to be fufficient to convey a Right to Princes, 
and render their Acquifitions lawful. Now we muft do 
the Dodor the Juftice to own, he does not call in que- 
ftion God's Prerogative to difpofe of Kingdoms in this 
manner; but he feems to deny, that tht Jem could be 
influenced by that Confideration, under the Bahylonijh 
Captivity. For, 

I, He fays the Jews had fubmitted to the King of 

Babylon before God had commanded them to do fo ; 

which was not t\WZedekiah\ Reign. But furely the Pro* 

phet Jeremy had given the Jews publick Notice, in the 

(q) Jerem. foutth Year of Jeho'mkim^ (q) that Goo would deliver 

»v.p, II. ji^g^ yp ^^ j.j^g ^jj^g of Babylon^ and had condemned 

them to a State of. Servitude for Seventy Years. Now 
this Declaration alone, though it had never been fecond- 
ed by any exprefs Injun6tion of Obedience, was a fuffi- 
cient Admonition to the Jervs^ that it would be befl: for 
them to live peaceably and quietly under their new Ma- 
fters; for to refift, upon a full Affurance of doing it 
without Succefs, (which God had before-hand warn'd 
them, would be their Fate) muft have been the Height 
of Folly and Madnefs. Again, the Commiffion, by 
Virtue of which the Prophet fpake to Zedekiah^ to bring 
his Neck under the Yoke of the King of Babylon^ was 

(r) Jerem. giveu (r) in the Beginning of the Reign of Jehoiakim ; 

xxvii. I, &c. gj^jj ^gg |.[^gp, openly notify 'd by the Bonds and Tokes^ 

which Jeremiah was commanded to put upon his Neck. 
So that the Jews had early Notice, before Zedekiah\ 
Reign, that it was G o d's Pleafure, they (hould prepare 
their Necks for the Babylpnifh Yoke, and arm themfelves 
with Patience for a long Captivity. 

But after all, though the Jews had indeed made an 
outward Profeflion of Obedience to Nebuchadnezzar', tho' 
two of their Kings, with all their principal Suhjeits^ 
were his PrifOnerS in Babylon^ and found it neceflary to 
behave themfelves there with all external Signs of Hu- 
(0 2Chron. mility and Obfervance ; though Zedekiah (s) govern'd Ju- 
dah and Jerufalem^ as an Ajfyrian Province, only by Vir- 
tue of a Commiffion from the Conqueror, to whom he 
had fworn Allegiance; yet the great Searcher of Hearts 
knew, that this their pretended Submiffion was altoge- 
ther feign'd and hypocritical ; and that they only wait- 

t ed 


Croiv;^ of England offer ted, &CC. 241 

ed for an Opportunity to fhake off the Yoke, which 
they were refolv'd never to bear, notwithftanding their 
publick Engagements to the contrary. This was the 
Reafon of the many MefiTages, which God fent by Je- 
remiah to the Jexvs^ requiring them to ferve the King of 
Babylon^ and threatning to ahmdon them entirely to the 
Mercy of their Enemies, if they departed from their 
Obedience to him. From whence it is evident, that how 
dutiful foever their Language and Addrefles might be, 
nothing but Sedition and a Revolt was in their Hearts, 
which would unavoidably end in their utter Deftru6tion. 
So that the utmoft life that can poffibly be made of this 
Cafe of the Jews^ is no more than this ; That whenever a 
Conquered People are in the fame Circumftances, in which 
the Jews then were ; when their Kings are bound in Chains^ 
and their Nobles with Fetters of Iron ;'and the remaining 
Heirs of the Kingdom have openly renounced all Pre- 
tences to it, by the moft Sacred Obligations : In a word, 
when all Efforts for their Liberty feem evidently vain 
and ineffectual to common Senfe ; and the Voice of 
G o D has befides declar'd, that Refiftance fliould be their 
Ruin ; it is then not only lawful to be quiet and peace- 
able, but a manifeft Indication of Diftradion to be o- 
therwife. And now, if the Doftor can draw an exadt 
Parallel to this Cafe, from any Revolutions within his 
Memory, let him make the beft of it. 

F R o -M the Old Teftament we muft now wait upon 
the Doftor to the New, to which he affures us his Do- 
ftrine is alfo agreeable ; as appears^ fays (t) he, from our O) rino; 
Samours Refolution of the Cafe^ that was put to him^ whether ^' ^^' 
it was lawful to pay Tribute to Caefar, or not. He bid them 
Jhew him the Tribute-Money ; and only asked them^ wboje 
Image and Superfcription it was^ (i. e. who is in Vofjeffion of 
the Government ? ) and when they anjwerd him^ CaefarV ; he 
immediately determines^ Render therefore to Caefar the Things 
that are CsfarV, ^c. 

Now here, I muft confefs, I am extremely at a Lofs ; 
and after my beft Endeavours to difcover by what pro^ 
found Politicks the Doctor was induced to think this Ar- 
gument for his Service, I am forced to give over my 
Enquiries, without any Profpeft of Satisfaction. Has 
the Doftor then found it out at laft ; and is it no longer 
to be doubted, but that whoever has Power enough to 

Q q q coin 

242 "The Hereditary Right of the 

cdin Money, is always in full and lawful Pofleflion, and 
ought to be look'd upon as G o d's Vicegerent ? Then 
furely it will follow, that Oliver Cromwell had a Title to 
the Allegiance of the People of England ; for it can ne- 
ver be denied, but he might have rfiew'd his Money to 
the Cavaliers, and ask'd them the fame Queftion, which 
our Saviour did the Pharifees, whofi Image and Super- 
ycrrp?wnijf^/j? And the Do£tor cannot but be fenfible, 
that he muft admit of this Confequence, unlefs he will 
decline the Authority of Grotius^ to whom he has raani- 
feftly appeal'd for the right Underftanding of this Place 
C«) Votum of Scripture. For Grotius^ in the very Place (« j cited 
pro pace, y^^ j.j^g Doftor, plainly affirms, that his Allegiance was 
due only to the States of Holland and Wefi-Fnzeland^ and 
nolto the States-General "j To the former only ^ fays he, lam 
fvporn^ and not to the latter^ to whom the Military Men alone 
take Oaths of Obedience : And then he adds, as a Proof, 
that he own'd Subje^ion only to the States of Holland and 
}Vefi'Frizeland^ That if any one in our Time had Jhewd our 
'M-oney^ and aslid^ whofe is this Image ? Any Man^ both the 
Learned and the Vnlearned^ would readily have anfwerd ; The 
States of Holland'j. Thus at length it appears, that our 
late Commonwealth^ and even Oliver Cromwell, was no 
VJurper. But why then is the Doctor fo angry with his 
Adverfaries, when they tell him, his Arguments are as 
ferviceable to that Tyrant^ as to any of his Kings de Fa^ 
&o? Is there any one of their Objedlions, which he refents 
(x) Sec his with greater Indignation, (z) than that which reproaches 
A/f««, p. j^ jjjj ^i{.[^ defending the Caufe of Cromwell ? Does not he 
tell them over and over, that Cromwell had not the Supreme 
Power^ or Sovereign Authority in England, and that it could 
never be provd^ from his Principles^ that the Obedience of the 
SubjeBs was due to him ? How ! Is it poffible that the Do<r 
6tor Ihould fo much forget himfelf ? Is it not his avow'd 
(y) yiev, (y) Principle, that the Coining of Money is a certain Mark 
P-^^' of Sovereignty ? That whoever has that Power, ought 
to be obey'd by our Saviour's own exprefs Precept and 
Diredion ? And is not this a good Proof of Cromwell's 
divine Authority ? But the Dodor tells us, our Confiitu- 
iz,) Defence, fion is a facrcd Thing too; and by that he is very (z) con- 
^' ^°  fident, Cromwell could not be authorized to ezercife any manner 
of Power y for he had not the Regal Title^ to which alone by 
our Laws the Royal Office is annexed ; and bejides he had never 


Cro'wn of England afferted, S^d: k^j 

been recognized by the States of the Realm. Thus it is, wheri 
we have to do with acute and judicious Writers; but 
then it is evident, that our Confiitution teaches us one Do- 
ftrine, and the Holy Scriptures another : And how can 
it then be true, that they entirely agree in obliging Sub- 
jedts to obey thofe, who are in PolTeffion of the Govern* 
ment, which the Doctor exprefly [a) affirms ? In a word, 
if the Power of Coining Money be a fufficient Token 
of the Divine Commiffion of the Perfon poflefs'd of it, 
it will not only follow, that Oliver Cromwell was a Law> 
ful Governor ; but that we had fome Hundreds fuch at 
once in England in King Stephens Time : For {b) a good 
Author tells us, That in thofe Days many Cajiles were ereSi^ 
ed in every County by the great Men ; and that there were then 
in Rngland as many Kings^ or rather Tyrants.^ as there were 
■Lords of Caflles^ every one of them coining their own Money^ 
and adminifiring Jufiice to their refpe&ive Subje&s. 
' ' Upon this Occafion I would intreat the Reader's 
Pardon, if I detain him a little upon the Subjed of 
CromweWs Authority, which though it has been fufficient- 
ly confider'd (c) already, yet it may be worth while to 
add fome other Particulars, to convince the Doctor, that 
as he has managed the Matter, it will be hardly poffible 
for him to prove Cromwell to have been an Ufurper. His 
firft Argument is this : 

I . Cromwell had not (fays (d) the Dodor) the Supreme 
Power^ or Sovereign Authority of England. This is very 
ftrange ! He exercifed an abfolute Sovereignty; He was 
courted by all Foreign Nations with Fear and Trembling ; 
and the People of England^ without DiftinClion, found 
it necefifary to endure his Tyranny with Patience and 
Refignation. The late Tranfa^ions of thefe twelve Tears 
paft (fays a (e) Lawyer of great Authority) had involvd 
Jo many Perjons^ that we could fcarce find a Man^ but he had 
need of the Kings Mercy. And another very (/) eminent 
Writer has affur'd us, That the whole Eft ate s of the Crown^ 

(4) Vievf, p. 8p. 

Xb) Caftelfa per fingulas Provincias (c) IntroduUm, p. 2, & fecj. 

ftudio partium crebra furrexerant, erant- {d) Defence, p. 106. 

que in Anglia quodammodo tot Reges, (e) The Solicitor-General, afterwards 

vel potiCls Tyraiini, quot Domini Ca- Lord. Chance/lor Finch, at the Tryal of 

ftellorum ; habentes fwguli percuffuram Cook the Regicide. 
proprii mmifmatis, 8c poteftatem fubditis, (f) The late Bifhop of RochefterV Oi- 

iegio more, dicendi juris. Will. Neu- fervatisns Oft Sorbiere'/ Voyagti 
brigenf. Rer. Angl. 1. i. c. 22. 


244 5^^^ Hereditary Right of the. 

the Cler^j^ and mofl of the Nobility and Gentry^ and indeed 
well nigh the whole Nation^ were then at the Vfiirpers Difpo^ 
fal. And (which I would only whifper in the Dodor's 
Ear, without defigning it for the Information of the 
Reader) there was not one Non-Juror in all the Time of 
his Government. 
{g)Btjme, a. W E are told, (g) that Cromwell could not he a Law 
upra. j^^ Governor^ becauje he had not the Regal Tttle^ to which 
alone (as the Doctor affirms) by our Laws the Regal Office U 
annex d. But this is likewife a vain Surmife; for our 
Hiftories furnifli us with Inftances, that the Regal Office 
has been fometimes lawfully exercifed, without the Regal 
[h) P. 5ii Title ; which I before (h) obferv'd to be the Cafe of 
Maud the Emprefs ; and on the other hand, we are cer- 
tain, our Laws have conferred the Title of King^ with- 
out annexing to it Sovereign Power. Thus the eldeft 
Son of Henry II. was crowned and anointed Kingof £ng- 
(i) Theft land in his Father's Life-time ; and yet he remained in 
Tn'^r;?^' the Condition of a Subied. (0 King Richard II, when 
Words in his he had determin d that Robert Earl of Oxford (who aljo was 
^?R r Marquis of Dublin, and Buke of Ireland) /hould be created 
c- ip' King of Ireland, queftionlefs did not doubt ^ hut that he him^ 
felf in the mean while poffefs^d that IJland by as good a Title^ 
although he was only fyled Lord thereof. And when Hm" 
ry VI. had created Henry Beauchamp^ Duke of Warwick, 
(i) King of the Ifles of Wight^ Guernfey^ and Jerfey^ (k) it 
den, Ibid. ^^^ ncvcr difputcd, but he ftill retain'd the fupreme Do- 
minion over thofe Iflands. 
(/) Defence, 5. The Doftor adds, (/) that Cromwell had never been 
Ibid. recognizd by the States of the Realm. A Confeffion, that if 

this had happened, he would^ then have been a Lawful 
Monarch. And what is this, but attributing to the 
Three Eftates a Power of Depofing Kings, as hath been 
(m) Intro- abuudautly (m) prov'd already ? And after this plain 
'^*'^'*'''^^^'^- Acknowledgment, the DoSor may inveigh againft Re- 
publican Principles, as long as he pleafes ; but he has 
certainly fo far fubjeded the Rights of Kings to the Will 
and Difpofal of the People^ that when once they have 
pronounc'd their Sentence, that they will not have this Man 
reign over them, there is then an End of all his Preten- 
fions, and in an Inftant he becomes a Private Perfon. 

Let not the Doctor be offended, that I apply the 
Name of People to the States of the Realm j for in their 


Cr)omt of Ehgland apned, &cc. 24^ 

highefl: Capacities they are but the People*^ Repreferlta- 
tives ; and when all is faid, the greateft Peers are but 
the greateft Subjeds : And if they are no more than Co^ 
I wifh the Doctor would fliew us, where he finds it ia 
our Conftitution^ that the Subjedls can transferr their Alle^ 
glance whenfoever they think it proper. To bring this 
Matter to a Point, I fllould be glad to learn from the 
Dodor, whether the Parliament which declared Ri- 
chard II.'s Throne vacant, and placed Henry IV. in it, 
were Subjects, or not. The Dodtor cannot but be fenfi^ 
ble, that the Power he afcribes to the States of the Realm^ 
will depend upon the Refolution of this Queftion; and 
therefore it is to be hoped, he will take it into Confidera- 

Now though, the Dodor will find this Opinion of 
his very artfully fupported in the learned Writings of 
Buchanan^ Milton^ ^nd Johnfoh; yet I muft not conceal 
from him, (if it be not a Prefumption in me, to think 
this is a Secret to him) that the Houfe of Commons of 
1642^ may juftly claim the Honour of firft fetting this 
Do6trine in its true Light, and (which is a Circumftance 
much to be regarded by the Doctor, and will without 
doubt exceedingly endear that Statute to him) they en- 
deavour to prove it from the eleventh of Henry Mil. I 
(hall fet down the whole Matter, as I find it in Ru/h- 
ix)orth\ (n) Colledions, and leave it to the Doftor^ to form c«) Pai-i 3: 
his Speculations wpon it. ^"'^ ^' 

King Charles I. (o) recommends to his loving Sub- (p) Atfiier 
je6^s (in order to inform themfelves, what their Duty ^rJion o/thT 
was to him in thofe difficult Times) the careful Perufal if^'"'"'"/*^, 
of the Statute of the eleventh 'of Henry VII, which re- ^^"^'^ ^ ' 
quired their Attendance on the King in his Wars, as an 
indifpenfable Part of their Allegiance; and at the fame 
time fo order'd it, that the faid Statute was reprinted by 
itfelf, and difperfed about the Kingdom. The Houfe of 
Commons finding themfelves concerned to prevent the 
dangerous Operation of that A7 of Parliament^ foon af- 
ter refolv'd upon a Remonftrance for their Juftification^ 
and (p)they likewife particularly ad vife their Friends, (p)iLj2&i 
to take great Notice of that Statute, as a proper Rule ^^"^^^ 
for their Conduct and Behaviour, in the following 
Words :• 

R r r Thai? 

1^6 The Hereditary Right of the 

That all Men may the better know their Duty in Mat- 
ters of that Nature^ and upon how Jure a Ground they go^ 
that follow the Judgment of Parliament for their Guide ; we 
wifh them judicioujly to confider the true Meaning and Ground 
of that Statute^ made in the eleventh Tear of Henry VII, 
cap. I . which is printed at large at the End of his Majefiys 
Mejfage of the fourth of May. This Statute pro^ides^ that 
none that Jhall attend on the King^ and do him true Service^ 
/hall he attainted or forfeit any thing. What was the Scope of 
this Statute ? To provide that Men Jhould not fuffer as Trai- 
tors for ferving the King in his Wars^ according to the Duty 
of their Allegiance ? If this had been all^ it had been a 'very 
needle/} and ridiculous Statute. Was it then intended (as they 
may feem to take the Meaning of it to be^ that cau/ed it to 
he printed after his Majeftys Me/fage) that they /hould be 
free from all Crime and Penalty .^ that /hould follow the 
King.^ and ferw him in War.^ in any Cafe whatfoemr.^ 
whether it were for^ or again/i the Kingdome^ and the Laws 
thereof? That cannot be 3 for that cannot /land with the 
Duty of their Allegiance.^ which in the Beginning of this 
Statute u exprefs^d to /??, to ferue the King for the Time being 
in his Wars^ for the Defence of him and the Land ; and there- 
fore if it be again/i: the Land.^ {as it cannot be under/iood to be 
otherwife\ if it be again/i the Parliament^ the Reprefentatizie Bo- 
dy of the Kingdom) it is a Declining from the Duty of AUe- 
giance.^ (which thU Statute fuppofeth may be done) tho Men 
/hould follow the Kings P erf on in the War: Otherwife there 
had been no need offuch a Provifo in the End of this Statute.^ 
that none /hculd take Benefit thereby.^ that /hould decline from 
their Allegiance. That there fore which is theprincipalVerbinthis 
Statute.^ is the ferving the King for the Time being.^ which can- 
not be meant of a Perkin Warbeck, or any that /hould call 
himfelf King.^ but /itch a one a^^ whatever his Title might proue^ 
either in him/elf or his Anceflors., /hould be received and ac- 
knowledged for fuch by the Kingdom.^ the Confent whereof can- 
not be difcerned but by Parliament^ the A& whereof is the AB of 
the whole Kingdom.^ by the Perfonal Suffrage of the Peers., and 
the Delegate Confent of all the Commons of England. 

And Henry VII, a wife King.^ considering that what was 
the Cafe of Richard III. his Predece/jfor, might., by Chance of 
Battle., be his own ; that he might at once by fuch a Statute as 
this., fatisfy/uch as hadfervd his Predece/for in his Wars., and 
alfo fecure tkofe., that /hould ferve him., who might otherwife fear 


Cronjon of England afferted, &c. 24*^ 

to ferije him in the War^ left by Chance of Battle that might 
happen to him alfo^ (if a Duke of York had fet up a Title a- 
gainft him) which had happend to his Predecejfor ; he procured 
this Statute to be made^ that no Man fljould be accounted a 
Traitor for Jewing the King in his Wars for the Time being; 
that ii, which was for the prefent allowed and received by the 
Parliament in behalf of the Kingdom. And^ as it is truly fug" 
gejied in the Preamble of the Statute^ it is not agreeable to Rea^ 
fon^or Confcience^ that itjhouldbe otherwife ; feeing Menjhould 
be put upon an Impojfibility of knowing their Duty^ if the Judg- 
ment of the Highefi Court Jhould not be a Rule and Guide to 
them. And if the 'judgment thereof Jhould be followed.^ where 
the Quejiion is., Who is King ? much more^ What is the befi 
Service of the King and Kingdom ? And therefore thoje that 
/hall guide themjelves by the Judgment of Parliament^ ought^ 
whatever happens, to be Jecure and free from all Account and 
Penalties.^ upon the Grounds and Equity of this very Sta^ 

And to the fame purpoie they argue againft the 
King, and defend this their Expofition of the nth of 
Henry V\l. in a following Remonftrance, ]V<?i/. a. i6^a. 
in thefe Words. 

(q) G OD be thanked.^ the Cafe is not now.^ as it was at the (0 Rulli- 
Timewhen this Statute., viz. nth 0/ Henry VII. was made., S"ibid?^' 
to Jecure his Subje&s from that continual Uncertainty and Dan^ 
ger they were ezpojed unto., in refpe& of the different Titles of 
York and Lancafter; the one prevailing one while.^ and the o- 
ther another time : And therefore by this Statute it was pro- 
vided., that whofoever Jhould ferve the King for the Time be- 
ing {whatever his Title may prove) Jhould be free from all 
Crime and Penalty. So that whomjoever the Parliament had 
at that Time received in the behalf of the Kingdom., he muji un- 
doubtedly have been accounted the King for the Time being ; and 
conjequently the People Jecured in following him., tho another and 
haply a better Title had been Jet up againft him, {oa if there 
had been a True Duke of York living., a better might have been 
fet up againft him^ Henry Yl\. than his own:) We Jaythen.^ 
as we Jaid before., if it be againji Reajon and Conjcience., that 
Men Jhould fuffer., that guide themjelves by the Judgment of the 
highefi Court .^ which is alfo the Reprejentative Body of the whole 
Kingdom ; and if in this Statute the Parliament is made Judge 
in the Quejiion., Who is King ? much more are they to be Judge 
in the Queftion^ What is the beft Service of the King and King- 
dom ? 

248 The Hereditary Right of the 

dom ? And they ought to he free from all Crime and Pimijh- 
ment^ that follow the Judgment thereof upon the TJery Grounds 
and Reafons of this Statute^ which we do agree^ his Majeflys 
good Subjc&s may read vpith Comfort', becaufe it lays down a 
Ground^ which deliiiers them from Vncertainty in their Obe^ 
dience^ in the difficulteji and highefi Cafes whatfoever. 

From thefe Extracts the following Remarks will be 
obvious to the Reader, i. That the prefent Conftru- 
6tion of the nth of Henry VII, fo often appealed to, and 
fo much infifted upon by many eminent Writers foon af- 
ter the Revolution, and now again lately by Dr. Hig- 
den^ was of old urged, maintained, and publifhed as Law, 
by that Parliament, which took up Arms againft the King. 
I will not fay, they were the firft, that ever expounded this 
Statute in favour of Kings de FaSio ; for I think my Lord 
Bacon had before delivered his Opinion to that purpofe : 
But I m'ay boldly affirm, that none had ever, till that time, 
taken fo much Pains to clear and eftablifh the true Senfe 
of it, by fuch folid and weighty Arguments, as thofe 
brave Aflertors of the Rights and Liberties of the People 
of England. 2. They aflure us, it was Part of our Con^ 
fiitation^ that whoemr jhould he fet up or owned hy the Par^- 
liament as King^ tho another , and haply a better Title^ Jhould 
he advanced againft him ; (which might haue been the Cafe of 
Henry VII. had the true Duke of York been then living ; j he 
ought undoubtedly to be accounted the King for the Time being 
within that Statute. And the Reafon they affign for thefe 
Doctrines, is worth obferving. It is not agreeable ffay they) 
to Reafon or Confcience^ that it Jhould be otherwife ; feeing Men 
Jhould he put upon an Impojfibility of knowing their Duty^ if the 
Judgment of the Highefi Court JJjould not he a Rule and Guide 
to them^ &c. Thus then it is evident, that all thofe mo- 
mentous Points of Law^ which the Doftorhas labour'd fo 
much to defend in his View^ were long fince advanced, and 
afferted to his Hand, by that Learned AfTembly of True 
Patriots, who began the Civil War againg King Charles I. 
The true Meaning of Henry VII.'s Statute could not 
efcape the Penetration of that Judicious Body; they took 
care then to publifh their Senfe of it ; and I have now, 
with great Fidelity, tranfcribed it for the common Benefit. 
Here we fee the Doctor's Principle publickly own'd and 
embrac'd by the ReprefentatiiJes of the Nation ; Allegiance 
is declared to be due to Kings de Fa&o, by Virtue of the 


Cromi ^/England ajferted, &c. . t^^ 

I ith -of Henr^ Vll^and not to all Kings'o^e fi/tf?^ neither^ 
but only to iuch as (hall be recei'v'd ami- acknowledged by 
Parliament^ or, as the Do6tor choofcs to exprefs himfeUi 
Jhall be recognized by the States of the Realm. .  ; ., . ..y 
It muft be confels'd however, as well fupported as 
this Do61:rine is by the abovemention'd Authority, it is 
liable to fome Objedions, which it may become the Do+ 
6tor to remove ; and therefore I (hall beg Leave to pro+ 
pofe them to him. TA 

1 . 1 T may be faid, that when King Charles I. drew up 
his Anfwer to that Remonftrance of the Houfe of Com* 
monsy in which they firft vented their Expoiition of the 
1 1 th of Henry VII j He takes Notice of it, as New and 
Singular, and never before heard of. They proceed (Tays 
the King) in the Spirit of Declaring^ to certify our SuhjeBs in 
the Mijiakings^ which near 1 50 Tears have been receivd^ con- 
cerning the Statute of the iith of Hen. VII. cap. I . (a Statute 
our good Suh'jeEis will read with Comfort) and tell them^ that the 
Service of the King for the Time beings cannot be meant of Per^ 
kin Warbeck, or of any that Jhall call himfelf King^ but of 
fuch a one as is allowed and received by the Parliament in be- 
half of the Kingdom^'Sic. 

Here it is plain the Good King (who did nothing of 
this Nature without the Advice and Confent of his Coun- 
cilj wonders at the Conftruution given by the Commons^ of 
this Statute ; he recites it only with an Intention to ex- 
pofe it; and thinks it a fufficient Argument againft it, that 
a different Opinion had univerfally prevail'd, ever fince 
the firft making of that Statute. Now I am apt to think^ 
the Dodor will be a little furprized (I fpeak this (till up- 
on a Suppofition, that thefe Pdffages Iiad efcaped his Ob- 
fervation) to (ind a Judicious Prince (for whofe Memo- 
ry, I am very fure, he has a high and juft Value) (b ig- 
norant of our Conftitution^ as to treat with Contempt that 
very Opinion, which the Dodor has taken fo much Pains 
to prove, will do the greatelt Honour to our Country, 
and is the nobleft Indication of its Wifdom. But this 
perhaps is an idle Imagination; and what fome weak 
People may fancy to be Difficulties, will not appear fo 
to the Dodor. I proceed however to another Obje- 

a. W E have likewife the Teftimony of a very emi- 
nent Lawyer againft the Do6trine of the Houfe ofConj- 

. S s s mons ; 


1^0 The Hereditary Right of the 

mons ; and this he deliver'd in a Court of juftice at the 
Tryal of one of the Regicides. It is well known to thofe 
who have perufed the Judicial Proceedings againft thofe 
Criminals, that feveral of them pleaded the i ith oi Hen' 
ry VII. in their Defence ; and particularly Colonel Mar- 
tin had fo good an Opinion of the Authority of that Sta- 
tute, as expounded by the foremention'd Parliament, 
that he plainly intimated, a Parliamentary Title was the beji 
King Charles 11. had. This Piece of Confidence was fo 
t]rfi^'d ^'S^^y r^^cnfed by the (r) Solicitor General that then was, 
aanctihr that he made the following Anfwer. My Lord^ this 
Gentleman.^ the Prijoner at^the Bar^ hath entred into a Dif- 
courfe.^ that I am afraid he muft haw an Anjwerfor in Parlia- 
ment. He hath owned the King ; but thinks his beji Title is 
the Acknowledgment of the People.^ and he that hath that^ let 
him be who he wiH., hath the beji Title. Now this is Point- 
blank againft the Dodtor's Afifertion ; for nothing is more 
evident, than that this Great Man was extremely offended 
with the Pofition, that a Parliamentary Title was the beft 
a King of England could have. But certainly this is what 
the Doctor maintains; for he affirms, that th^ Recognition 
of the States of the Realm is fufficient to make a Lawful 
King, and then it muft be fufficient to fuperfede a Title 
by Birth, and confequently is the beji Title. 

I A M fenfible, this has been a very long Digreffion, for 
which 1 ftiall need my Reader's Pardon ; and this I doubt 
not he will grant the more readily, if he confiders it con^ 
fifts of fome Particulars too material to be wholly omit' 
ted, and will allow me to tell him, I am not now at Lei- 
fure to infert them in their proper Place. 

I RETURN now to the Dod:or's Argument from our 
Sa'viour''s Anfwer to the Pharijees^ upon Sight of the Tri" 
bute Aioney. I have fhew'd him the ill Confequence o£ 
Grotim's, Expofition of that Place; and would now recom^ 
mend fome farther JDifficulties to his Confideration, which 
may be objefted againft that Learned Mans Opinion. 
The Truth is, when a Text is capable of various Inter- 
pretations, and able Commentators are divided in their 
Sentiments about its true Meaning, it is a little too ar- 
rogant in the moft applauded Writer, to think to impofe 
his own Conjedture uncontroulably upon his Reader, be- 
fore he has fatisfied him, that the Attempts of others have 
really fail'd of Succefs. Thus it is with Grotim ; he 


Crowi of England afferted, &C. 1^1 

atx>unds in his own Senfe, in the Explication of the Pa(*- 
fage now before us, without pretending to confute the 
different Solutions, which have appear'd plaufible to other 
Judgments; and I may appeal to Dr. Higden himfelf^ 
the greateft of his Admirers, in the Queftion now under 
Conlideration, whether that Learned Annotator has pro- 
duced one Argument, by Virtue of wliicli it is more rea- 
fonable to be of his Perfuafion, than of theirs from whorrt 
he diffents. Let us examine this Matter more at large. 

I . Some have been of Opinion, that our Samour did 
not in thefe Words teach, that Tribute was to be render d 
to Cdfjar ; 'Tis only, fay they^ a general Precept of gi- ^ 
ving to God and Cdejar their Due, without determining 
particularly, what their Right was. It may, it is true, be 
objeded, that then our Saviours Anfwer was evafive, and 
not at all to the Queftion ; but this gives them no Di' 
fturbance; for confidering the infidious Intention with 
which the Fharifees put this Queftion, they are of Opi- 
nion, it was highly confiftent with his Prudence to re^ 
turn fuch an Anfwer, as would rather filence them^ 
than fatisfy their Doubt ; and this is faid to have been 
Mr. Cd'vins Notion. In Defence of which they add, 
(s) that if our Saviour had exprefly enjoin'd the Payment W Sei tie 
o( Tribute to C^far, in this Anfwer, which was utter'd foZ'^HiHg^ 
publickly, and before a great Multitude in the Temple; ^/"rp^d 
his Adverfaries could not have had the Impudence, a pr"!Zdi6p. 
few Days after, to accufe him before Pilate^ as one that 
perverted the Nation, and forbad to give Tribute to C<£- 
far : For tho' there was no fort of Villany, that their 
Malice would not have prompted them to commit, in 
order to deftroy him ; yet they muft have had too much 
Regard to their own Intereft and Safety, to charge him 
with whatfo many knew to be a Slander. 

1. Others think our Saviour did give a diredl An- 
fwer to the Thurifies ; but then they fay, it will by no 
means follow, that he enjoined Obedience to all unlawful 
and ufurped Powers ; for his Command extended no far- 
ther, than to the Payment oi Tribute ; which may be due 
to ambitious, warlike, and dangerous Neighbours, ra- 
ther as a wife Expedient to prevent' a total Subjedion^ 
than as a necelTary Confequence and Effe6t of it. In 
this Cafe it is not material, whether the Prince, that de- 
jn.ands Tribut€^ has a Right to it, or no ; becaufe they that 


2^2 The Hereditary Right of the^ 

pay it^are fuppofed to confider only his Power of Injuring 
and Opprefling them, which they are not able to op- 
pofe; and therefore may lawfully compound for their 
Security, by offering a Part, in order to fave the Re- 
mainder. Now the Jevps, at the Time we are fpeaking 
of, were really a Conquer'd People; their Country had 
been reduced into the Fonn of a Roman Province by Au^ 
gufvus^ and was entirely at his Mercy ; but his Indul- 
gence to them was remarkable; he permitted them to 
govern themfelves by their own Laws ; and allowed them 
Privileges feldom granted to a Vanquifh'd Nation; in 
Return for which mighty Favours, he was contented with 
an Annual Tribute, which they had all imaginable Rea- 
fon to iubmit to. They knew very well, they had for- 
merly paid Tribute to the Egyptians^ the Perjians^ and 
the Macedonians; and therefore had no Pretence to be 
fcrupulous, now it was exadted from them by the R&' 

:^. Another Reafon affign'd, why our Saviour re- 
' quired the Payment of T(i3«^e to C4;/Sr, was, becaufe he 
had a good Title to the Obedience of the Jews., by Vir- 
tue of their entire Submiffion, and Surrender of their 
Government to the Romans. This was the Opinion of 
(t) De jure Mr. (t) Selden^ and Dr. Hammond., not to name any more. 
bisos^'^L 6.^' They were perfuaded, that the Jews had unanimoudy 
<^- J 7. put themfelves under the Roman Protedion, and confe- 
quently had bound themfelves to the Payment of Tribute.^ 
 and all other cuftomary Acknowledgments, due from fub- 
ordinate States and Principalities to their Sovereigns: 
That for this Reafon our Saviour called for the Tribute- 
Money., that by the Sight of the Image and Superfiription^ 
they might be convinced, how unreafonable their Preten- 
fions to Liberty were, after fo plain and manifeft a Re- 
lignation of it, as then appeared to their View. For, in 
the Opinion of thofe learned Men, this Tribute^ Money 
exhibited undeniable Marks and Tokens of the Roman 
Authority over them, and therefore plainly determin'd 
the Queftion againft them. 

Thus we fee here are Three Expofitions of our Sa>' 
iiiours Anfwer, much different from that of Grotius ; for 
he fuppofes thatC^y^r was anVfurpery and that our So* 
viour reprehended the Pharifees for not fubmitting to 
him, though he was fo, and no better: But of thole, I 


Croivn of England afferted, &cc, ^j 

have now recited, two of them have no Relation to the 
Title of the Roman Emperor ; and the laft plainly aflerts 
it to be good and unqueftionable. Now, if thefe Opi- 
nions are really abfurd, and untenable, and by no means 
fit to be countenanced, in Comparifon with that of Gro^ 
tias ; let them fare as they deferve ; but furely we owe 
them that Juftice, not to condemn them before Examina^ 
tion; which fince neither Grotius nor Dr.Higden have 
thought fit to beftovv upon them, I beg Leave to become 
an earneft Suiter to the Dodtor, that he will retract his 
Cenfure, till they have undergone their due Tryal ; and 
then he may proceed againft them as he pleafes. On the 
other hand, it is moft certain, that Grotius^ Opinion is 
liable to great Objedtions, which I (hall now propofe to 
the Doctor's Confideration. 

I. It is plain from our 5^wWj Anfwer, that he did 
not defire, the Jervs fhould do more for Cdefar^ than was 
confiftent with the common Principles of Right and Ju- 
ftice : He bids them ghe unto Ca^far the Things that be 
CaefarV; that is, give him what is his Due, what he 
may lawfully claim, and what you yourfelves muft al- 
low to belong to him, by your own avow'd Maxims and 
Rules of Equity. He did not pretend to give them any 
new Laws, by which they fliould judge of the Titles of 
Princes; but plainly referrs them to thofe already in Be- 
ing for their Direction ; and confequently, it is not pof> 
fible to explain our Saviour's Meaning according to Gro^ 
thus Imagination. For where fhall we find in the Old 
Teftament the leaft Inftance of G o d's obliging People to 
be fubjedl to Ufurpers ? Or how can it be proved, that the 
Laws of Nature have made it their Duty ? It is true, 
great Endeavours have been ufed to pafs this Deceit upon 
the World ; and Dr. Higden has thought it worth his 
while, to tranfcribe fome of the common Arguments ur- 
ged for that Purpofe ; but the Fallacy is eafily detetfted^ 
and has been fufficiently made to appear, to the Satif- 
fadion of reafonable Men. Had our Blejfed Saviour efta- 
blifhed the Rights of Princes on any different Founda- 
tion, than what they ftood upon before ; his Will, in a 
Matter of fo great Confequence, would have been clear> 
ly revcal'd, and the Evangelical Writings would have 
borne Witnefs to this Truth, in Terms that could not be 
controverted : But that Confidence has hitherto proved 

T t t vain 

2^4 7^^^ Hereditary Right of the 

Vain, which has pretended to any fuch Difcoveries ; and 
indeed, had the Gof^el introduced any fuch Innovation 
as this, the Nature of Civil Rights muft confequently 
have been changed ; and it would not have been true, 
which the {u) Doftor himfelf confefTes, that our Bkjfed 
Lord made no Alteration in Matters of Government ', but 
left the Governments of the World as he found them. 

^i- The Fa6t upon which Grotius founds his Argu- 
ment, feems plainly to be miftaken by him. He would 
perfuade us, that Tribute was due to Cafar^ becaufe he 
was in Pofleffion of 'Judaa ; and to prove his PoiTeffion, 
he alledges his Coining of Money there, as an indifputa^ 
ble Mark and Token of it : But he (hould have confi' 
der'd, that amidft thefe great Changes, which befell the 
Jemjh Government, (x) they ftill retained the Power of 
Coining their own Money ; and never loft it till the final 
Eleftrudion of their City under Vefiajian. 

t.Neither was this a Favour allowed only to the 
Jews ; for there was hardly a City of Note, in the Ea- 
item Part of the Empire, which did not enjoy the fame 
Privilege ; as thofe who are but moderately skilled in 
this kind of Learning, are able to bear me Witnefs. A 
little Infight into the Cabinets of the Medalifts will (hew, 
that the Roman Emperors were weW enough contented, their 
conquer'd Subje(5ls (hould coin their own Money at their 
Pleafure ; efpecially if they took Care to adorn it with 
their Images, and did not forget to compliment them, 
tipon extraordinary Occa(ions, with Infcriptions to their 
Honour : So that if the Extent of the Roman Power and 
Dominion were to be inferred only from the Number of 
MintSj which were managed by their own proper Offi- 
cers ; we (hould foon reduce it into a very narrow Com- 
pafs : And our Saviourh Anfwer, inftead of proving that 
Tribute was due to Caefar.^ would ferve to a quite^ contrary 
Purpofe ; that is, it would plainly (hew, the ^jews were a 

C«) y}m, p. 88. f turn 8c abrogatum fuiffe nufquam Icgl- 
\x) Marqu. Freherus de Numifmate mus. Et J. Seldenus de Jure Nat. & 
Census, p. 1 6, Quod fub Grsecis Regi- Gent, juxta Hebraeos, 1. 2. c. 8. p. 224. 
bus, nominatim autem Demetrio Syriae Ed. Lond. Certb jus cudendae monet« 
Regc, Simoni Sacerdoti magno Judseo- etiam tunc [i e. in our Savioiir's Time] 
lum, inter alia piivilegia & immunita- Ebiseii inter privilegia alia eximia man- 
tes,' conceflum legimus (i Maccab. 15. 6.) fiffe, non iramerit J exiftimant viri do<3i, 
fc. jaeere percujfuram proprii NumiJmatU nee ante excidium fub Vefpafiano fubla- 
in kegione Jua ; id eis a Romaiiis adem- turn. 


CroTon of England afferted, &c. 29c 

Free People^ under no Obligations of Obedience to any 
foreign Potentate. 

I F it (hould be faid, that the Tribute^ Money having 
C^fars Image upon it, could not be ftruck by the Jews^ 
their (y) Law abfolutely forbidding them to employ 
themfelves in any Works of that Nature : I anfvver ; it 
will not from thence follow, that the Romans did adtuallv 
coin that Money in Judaa^ with which their Tribute was 
paid ; for the Jervs might furniih themfelves with a fuf- 
ficient Quantity of Money for that Occafion, by Ex- 
change and Commerce, as well as if a Mint had been fet 
up on purpofe in Jerufalem^ for the Coinage of Roman 
Money. Befides, every one of the Jews (who were in 
great Numbers dilperfed throughout all Parts of the Ro^ 
man Empire) being obliged by their Law to pay yearly to 
the Temple a Piece of Money ; the greateft Part of this 
Sum was undoubtedly returned in Roman Money, which 
would iufficiently enable them to pay their Civil Tri- 
bute ; and perhaps this was a great Part of the Employ- 
ment of the Money-Changers^ which our Saviour drove out 
,of the Temple, Matth. xxi. 1 2. 

^. Grotius was not always of this Opinion. In his 
Annotations, indeed, upon the Gofpels^ he feems extreme- 
ly fond of it ; but in his famous (z) Book de Jure Belli 
^ Pads, in that very Pafifage cited by the Doctor, he 
pretends only, that Pojfejfion conferrs a Title in controverted 
and doubtful Cafes ; and urges this Anfwer of our Bleffed 
Saviour to prove it; a Matter, which no reafonable Maqi 
will ever conteft ; that Maxim in Law being univerfally 
received, that in rebus dubiis melior efi conditio pojfidentis. 
But in his Notes on the Old Tefiament (which may juftly 
be look'd upon as the final Refolution of that great Man 
in feveral Inftances) he clearly difapproves of that Opi- 
nion, which affirms Z^fg^t to be the infeparable Attendant 
on Poffejfion ; and afferts the contrary. Thus, upon thefe 

(y) ]. Selden. de Jur. Nat. juxta He- itB.. 17. Sane cum Rege initum foedus 

braeos, 1. 2. c. 6. 8c H. Grotius, ad. 2. manet, etiamfi Rex idem aut Succeflbr 

Prac. Decalogi. Regno h Subditis fit pulfus. Jus tnim 

(•z.) This Book vas publi/h'd by Grotius, Rcgni penes ipfum manet, tncmqHe Popf- 

after kis Annotations on the Gofpels ; in fionem timiferit ; quo pertinet Lucani il- 

rthich it is ohftrvable, he does not only lud de Senatu Romano : 
Jpeak mth more Referve upon that Text of 

Giving to Cefar, &c. but indted plainly Non unquam perdidit ordo 

denies, that a Prince unjuftly difpojfefjed Mutato fua jura loco, 2™"*"" 

does thereby lojt h[s Right. Lib. 2. c. 16. 


Z^6 The Hereditary Right of the 

Words of the Prophet ^jerem^ [Jerem.xlix. i.l Concern- 
ing the Ammonites, thus faith the Lor d, hath Ifrael no 
Sons ? Hath he no Heirs ? Why then doth their King inherit 
Gad, and his People dtceU in his Cities ? Grotius remarks, 
that they were a clear Determination for Hereditary Right 
againji Tojfejfion. From hence (fays {a) he) vae learn^ that 
although it is faid^ that whoever makes himfelf Mafier of any 
Country by Force of Arms^ is by the Law of Nations the true 
Lord and Proprietor of it ; yet if the War be unjufl^ neither 
the Conqueror^ nor thoje that aB under him^ are acquitted be- 
fore God. What can the Dodor's Adverfaries defire 
more, than this Conceffion of Grotius ? Is it not from 
^hence plain, that Poffejfion againft an Antecedent Title 
\vil] not create a Right^ which is all they contend for? 

4. This Opinion, that wherever any Perfon has Power 
enough to coin Money^ he is a Lawful Poffejfor ; muft needs 
have proved fo fatal to the Roman Empire, that had it 
been the Chriftian Do6lrine, for that Reafon alone, the 
Profeflbrs of it would have been treated with the utmoft 
Rigour and Severity, as Enemies to C^efar^ and the mod 
dangerous Promoters of Sedition and Rebellion ; forcon- 
fidering the Multitude of Coining Offices throughout the 
Imperial Dominions, it was hardly poffible for any Re- 
bel to be fo unfortunate, as not to be Mafter of a City, 
.Xvhich had a Mint; and then he had nothing elfe to do, 
but to ftamp his Image on his Money, in order to become 
a Lawful Proprietor. But among the great Number of 
Crimes charged upon the C^ri/?wnj, which are carefully 
recorded by the Primitive Apologifts, we no where find, 
that they were accufed upon this Article : On the con- 
trary, to the no little Confufion of thofe, who advance 
this Notion, Tertuflian has exprefly aflured us, that they 
abhorred this Doftrine ; for (c) in his Remonftrance to 
Scapula the Roman Governor, he alledges it as an Inftance 
of the Chriftian Loyalty, that no Man could accufe bis 
Brethren of being Albiniani^ Nigriani^ or Cajfiani; that 
is, that they had been Adherents to Clodius Albinus^ 

(rf) Grotius ad Jcrem. 49. i. Difci- (b) Tertullianus in Lib. ad Scapulam. 

mus hiiic, quanquain vulgo dicitur, qui Scd 8c circa majeftatctn Imperatoris in- 

bello terras aliquas cepit, eorum Domi- famamur ; tamen nunqoam yitbm/inif 

fMis fieri jure Gentium j id tamen, fi nee Nigriani, vel Cajfiani, inveniri po- 

bellum lit ijijuftum, neque ipfum capi- tuerunt Chriftiani, fed iidcni ipfi, qui 

entem, ncque alios caufam ab eo haben- per Genios eorum in pridie ufque jurave- 

tes, apud Deutn abfolvere. runt, qui Chriftianos fepe daihnave- 

rant, &c. 


Cromt of England affertvd, &c. i^y 

Pvfcennius Niger^ or Auidius Cajfms ; the two firft of thefe 
were Governors of great Provinces, had numerous Ar* 
mies at their Command, and were eleded Emf>erors by 
them ; and all of them foined Money with their Images 
upon them, and the Infcrlption of Imperatores and Augujii^ 
as is well known to thofe, who are any thing curious 
in thefe Studies, and may be feen in Medioharbus^ and o- 
ther Authors, who treat upon the Subjedt of Medals. Is 
it not then evident, that the Chriftians of thofe Times 
had not learnt this Doctrine of Paying Allegiance to thofe, 
who were in Fojfejfion^ and could (hew their Images on 
their Money ? Had they underftood this to have been the 
Will and Command of our^^wW, they could not have 
been fo ftupid, as to boaft of their Difowning the Autho- 
rity of Pefiennius and Albinus., who were as much in PoC- 
feffion of two great Parts of the Empire, as Septimius 5e- 
'veruf was of a third ; but the Senate having declared for 
Sevems., and required them to obey him only as their 
Emperor^ they could not be look'd upon after that, by 
the (c) Confiituttons of the Empire^ as any other ' than 
VJurpers and Rebels. This was likewife the Cafe of fe- 
veral other Generals, and Governors of Provinces, who 
revolted from their Obedience. Caraujius and AlleSius 
were fucceffively Mafters of our IJland^ were proclaimed 
Emperors by their Armies, and aflfumed the Title of 
Augufii in their Coins, which are frequently dug up in 
this Kingdom ; but by the Roman Laws they were Trai- 
tors ; and as fuch were condemned by all honeft Subjects. 
Kow the Queftion is, how the Chriftians, who lived under 
thefe pretended Emperors^ (hould behave themfelves. By 
our Saviourh Law, fays the Dodor, they owed Obedience 
to Caraujius and AWeBus^ for they were in Tojfejfion of Bru 
tain., and could have (hewed Money with their Image and 
Super fcription upon it, which fufficiently demon (tra ted their 
Right ; but by the eftablidied Conftitution of the Roman 
Government, they were no better than Rebels ; and 
whoever aflilted them, were guilty of the fame Crime. 

(c) H. Grotius de jure Belli & Pacis, aut per fenatum tz^ ell : quae autem i 

1. 2. c. 9. feft. xi. Quae olim jure po- Jegionibus, niod5 his, mod6 illis, fie- 

tuit facere populus Romanus, antequam bant eleftiones, non erant rata: ex jure 

Imperatores Romani regnarent , idem Legionum (nam in vulgo nomine jus 

faciendi ju» habuit, ut quifque Imperator cettum efle non poteiat) fed ex approba- 

fnortuus erat, alio nondum exiftentc. tionepopuli. Ubi vide Authoris Anno- 

Imo Sc Eleftio Imperatoris ad populum tata. 
peitinebat, & aliquodes ^ populo per fe, 

U u u Thus, 

2^8 The Hereditary Right of the 

Thill, as the Dodtor has contrived it, the Chrifiians of 
thofe Ages muft have been of all Men the mofi miferahk 
in this World ; the Laws of their Saviour obliged them 
to one Thing, and thofe of the Empire to another ; and 
they might very juftly have thought fuch a Condition in- 

weartfome Condition of Humanity ! 
Born under one Law^ lo another hound. 

By what Expedient will the Doctor now relieve us 

under thefe Difficulties ? Either we muft be governed 

abfolutely by the X-aws of C h r i s t ; or we are bound 

to obey the Civil Confiitutions of the Country where we 

' live : If the firft is true, then it feems we are to be fub- 

je(Sl", and fwcar Allegiance to any one, who can (hew his 

image on his Coin ; but then it will follow, that there never 

was^ an Vfurper in all the Time of the Roman Empire : 

Then it will be falfe, that our Blepd Lord intended to make 

(d) See the uo Change in the Government of the World^ (d) which the 

Drfence.' ^" Doaor thinks an important Truth : And then laftly, to 

the eternal Reproach of thofe, who have embraced his 

Gofpel^ we have found an Inftance of a Chrijlian Law^ 

which never had any Authority in a C&ifiian Nation! 

But if we are to be govern'd by the Civil Confiitutions of 

our Country ; and it was never our Saviour's Defign to 

deftroy their Obligation ; to what Purpofe then did he 

give his DIfcipIes a Law, which he knew could never 

be obferved ? And to what End has the Doctor urged ir, 

againft the known Practice of this Kingdom, as well as 

that of the Roman Empire ? For the Proceedings againft 

the Regicides .^ and thofe who had adhered to Cromwell^ are 

good Evidences, that our Saviour's Doftrine was never 

(,) 7-^, ^„. thought to be in Force here; and the Reafons I have 

^pro/The mention'd, maybe fufficient to prove, it liad as little 

thorowsJt- Authority elfewhere. But to put this Matter out of 

^^."^^"'.^^^^-Difpute, in Relation to the Roman Empire^ I Ihall beg 

Anfwer to Leave to put the Do<Stor in Mind of the Story of the 

Rfelflt- Tyrant M^4mus, and that in the Words of a very {e) 

giancc, p.77, learned and judicious Writer. 

(f) Sofim. (f) ' Maximus^ after the Murder of Gratian., was in 
Lyt ?' ' ^"^^ Poffeffion of the Weftern Empire ; for Vakntinian 
c. iT   ^' ' left Italy.^ and fled to Thefjalonica^ with his Mother, and 
Theodor. c p^^^^^^ ^^^ Prafe&us Fratorii ; fo that Mazimus had 

' the 

Cr(m)n of England aJfertedy^Hc. z^p 

the Government of all the Weft in his Power. St. Ant" 
brofe was at that Time perfecuted hy the Emprefs Ju^ 
ftina^ (he being an Arian'^ and Mazimus pretended to 
make War upon her Son Valentinim in his Behalf; yet 
no Man was more againft the Proceedings of Mazimus^ 
than (g) St. Ambrofe ; and in the Negotiations he twice 
had with him, he maintained Fa/^wfimWs Caufe with all 
the Freedom and Courage, that became a Chriftiart Bi- 
fhop. I know we have been told, (Jo) that all the Bi- 
JIjops of the Wefiy not ezcepting the great St. Martin, who 
jvas called the Apofile of France, made their Applications to 
Maxim LIS, and followed his Court ^ as much^ if not more^ 
than they did any Princes of that Age. But it is Worth 
taking Notice of, that thefe Biftiops are much blamed 
for it by Sulfic'ms Semrus-, he fays, they were notorious 
for their bafe and fervile Flattery ; (i) and he gives fuch 
a Chara(5ter of Ithadus^ one of the chief of them, as I 
wi(h no other Bilhop may ever defer ve. But St. Mar^ 
tin was of (A) another Temper ; he frequently refufed 
to accept of his Invitations to his Table ; becaufe he had 
deprived one Emperor of his Life^ and another of his King- . . v 
dom y till at laft, when Mazimm had made the beli 
Excufe he could, cafting all the Blame upon the Sol- 
diers, who had forced him to take upon him the Em- 
pire ; and pretending, there was fomething more than 
humane in it ; St. Martin did condefcend to fit at the 
Table with him ; and he at all (/) Times hinder'd him, 
as much as he could, from doing Mifchief, and from 
breaking in upon the Privileges of the Church ; which 
was not owning his Authority : For as Sulpicius Severus 
informs us, (m) he rather demanded, than petitioned for 
what he asked of him. But as the fame Author re- 
prefents him, (n) Mazimus wanted nothing but a good 
Title, to make him an excellent Emperor ; and St. Mar- 
tin was willing to make the beft life of him he could, 
for the Benefit of the Church. 
'After, the Deaths of Mazimus and FMgenius^ 
' St. Ambrofe (o) fays of them, that they were both in Hilly 

(£) Ambrof. Epift. I. 7.. ep. 56. (/) Idem Hift. 1. 2. c 64. 

(t) Bijhop of SarumV PaftorM Letter^ («) Idem in Vita Martini, c. 25. 

p 12. («) Idem in Dialog, c. 7. 

(i) Sulpic.Sever«s.Hift. 1.2. c. 6}. (0) Ambrof, Epift. 5S. Et de obitu 

(i) Idem in Vita Martin, c « j. Tbcodofiij 

' ' teaching J 


(p)Dc cxci- 
dio Britan- 


Tf?e Hereditary Right of the 

teachings by their miferahk Ezampks^ how fad a thing it is 
for Subje&s to take up Arms againfi their Prince \ of vohotn 
it is fitly faid^ I ha've feen the Wicked exalted^ and lifted 
up above the Cedars of Libanus ; and I paffed by^ and be- 
hold he was not ; for the Righteous Man (meaning Theo- 
dojius and Gratian^ whom he juft before mentlon'd) 
paffed from the Darknefs of this World into Light Eternal ; 
and the Wicked was not ^ who hath ceafed to be unjuft. 
Which muft neceflarily fuppofe, that Maximus and 
Eugenius were as guilty in retaining, as in acquiring 
their unjuft Poffeffions ; and that they ceafed not to be 
unjuft, till they died, and were no more in this World. 
It had been ftrangely uncharitable to have faid , that 
they were both certainly damned , becaufe they had 
rebelled fome Years before their Deatfis ; if afterwards 
they became Lawful Emperors, and had fo long 
Space for Repentance : But he fuppofed them to live 
and die in continual Ufurpation, and therefore to be 
tormented in Hell after Death, as Ufurpers and Re- 
bels. . 

' (p) O R Countryman Gildas too gives fuch a De- 
fcription of Maximus^ as makes him no better , than 
an Vfurpery from the Beginning to the End of his Go- 
vernment ; he fays, he was advanced againfi: Law^ without 
any Title, or in a Tyrannical Manner ; that he firengthend 
himfelf by Lies and Perjury^ and continued his VJurpa^ 
tion by the Murder o/Gratian, and the Banijhment of 
Valentinian, and was the fame unjufi Vfurper to his 

' (q) ZoJimuA indeed fays, that Theodojius had confented, 
that Mazimus (hould be acknowledged Emperor; and 
commanded his Statues to be fet up, that he might, un- 
der a Shew of Kindnefs and Friendfhip, have the bet- 
ter Opportunity to ruin him ; but this is againft the 
Authority of all other Hiftorians ; and Zofmus never 
omits any Occalion to defame the Chriftian Empe- 
rors, and particularly Theodojim : And befides his Ha- 
tred to Chriftianity, which he exadtly copied from 
Eunapiws^ whofe Hiftory he is faid to abridge; he 
is lingular in other Circumftances, relating to this very 


Crouon of England aferte^, &c. i6i 

' fr) B u T it is more material to obferve, that Theo' 
do fills declared all the Laws and Ed ids of Maximm to 
be of no Force or Authority ; and that this was no 
more, than the Chriftian Emperors ufed to do in fuch 
Cafes. Which implies, that the Chriftians did not 
think, Tyrants and Ufurpers received any Authority 
from God; for if they had, all their A6is, which 
had been according to Natural Right and Juftice, muft 
have been valid, as being made by fuch as had God's 
Authority to ena6t Laws, and decree Juftice ; and it 
would have been finful to declare them void ab initio^ 
and of no Eifeft. For if G o d had empowered them 
to a61: as Emperors againft the ftanding Laws and 
Conftitutions of the Empire, he had authorized them 
to give out Edi£ls and Decrees, which muft have been 
as obligatory in Confcience, as thofe of the lawful 
Emperors themfelves; and whatever they wanted of 
the Formality of Law, ought to have been fupplied 
by the lawful Emperors; and not all their A^s to 
have been declared invalid, and never to have been of 
any Authority or Obligation. St. Ambrofe was not 
the Bifhop, who would tamely have feen G o d's Au- 
thority in his Vicegerents thus defpifed ; but Theodoji' 
m would have found him the fame Man, that he did 
upon fome other Occafions, if this had been the Do- 
ftrine of the Church." 
Thus that worthy Author has very accurately (hewn^ 
that the Chriftians did not look upon Maximm^ as any 
other than an Ufurper, notwithftanding the Extent of 
his Dominions, and the Greatnefs of his Power : And 
he proceeds to prove, they had no better Opinion of 
Eugentiis ; though he was much fuperiour to Theodofim in 
Strength, and commanded a more numerous Army. 

B E F o R E I leave this Subjed, I would humbly offer 
it to be confidered, whether our Saviours Anfwer to the 
Vharifees would not be more intelligible, and the Force 
of his Argument better underftood, if we fhould fay, 
the Money he demanded a Sight of, was coined by the 
Jevps themfelves? For then we may conceive, he rea- 

(r) Omne judicium quod vafra mente lus igitur fibi lege ejus, nullus judicio 

conceptum, injuria, non jura reddendo bJandiatur. Theodof. Cod. \. 15. 'Jit. 

/l/ziAriw'a infandiflimus Tyrannorum ere- 14. de infirmandis his quje fub Tyranni» 

didit promulgandum, damnabimus ; nul- aut Barbaris gei^a funt. 

X X X foa'd 

z6z The Hereditary Right of the 

fon'd with them after this Manner : ' Do yon pretend to 
'■'queftion the Lawfulnefs of Paying Tribute to Catfar^ 
^ who have ftarnped his Image upon your Coins for that 
' Purpofe, after the Cuftom of Conquered Countries ? 
^ You, who have been fcrupulous in paying this Com- 
' pliment to the beft: of your Princes, and yet are now 
' guiity of a viler Submiffion, than any others of the 
' ^omm Subjefts. Behold here your own Ad: and Deed, 
* your own Money witneffes againft you, and deter- 
' mines the Controverfy : For how came Cd^fars Image 
' upon your Coin, if you have not acknowledged him 
' for your Sovereign ? And if he is your Sovereign, why 
^ ' fhould you fcruple to pay him Tribute ? Render there- 
^ fore to Caefar the Things that be Caefar'j, iyc. 

I N Favour of this Conjecture (for I propofe it only 
as fuch) I have already cited the Opinion of very learn- 
ed Men, who have been willing to own, that the Jews 
were allowed the Liberty of Coining their own Money 
by the Romans ; but it muft be confefTed, they are much 
of a Mind, that it was not confiftent with their Laws to 
ftamp any Humane Effigies upon it ; and confequently 
they think it neceflary to affirm, that the Tribute- Money 
was ftruck by the Romans themCelves. Now, with all 
due Submiffion to better Judgments, I fee no fufficient 
(s) Exod. Evidence for this Aflertion : For, Ftrfl^ If their (j) Law 
"■ '^* • which forbids the Making of any Graven Image^ 'or any 
Likenefs of any Thing that is in Heaven above^ or that is in 
the Earth beneath^ or that is in the Water under the Earth ; 
if this Law, I fay, muft be underftood abfolutely, with- 
out any Limitation ; then Aaron s Rod^ and the Pot of 
Manna^ or Incenfe^ which are found upon the Jexvijh 
Sicles^ were illegal Images, and not to be defended by 
the Law of Mofes ; and then, if they could difpenfe 
with themfelves in this Point, why might they not as 
well allow themfelves the Liberty of Stamping Cd'far''s 
Image on their Coin ? 

Secondly^ If we confider the "End, for which the Jews 
were forbid by their Laws to make any Graven Images^ it 
win follow, that it U^as equally unlawful for them to 
purchafe or poflefs any Images already made by others ; 
for why were they prohibited to make any Graven Images^ 
but only left they ihould put them to a Religious Uie, 
and worfhip them as the Heathen did ? And can it then 

' •' . be 

Croim ^/England afferted, &c. 2.^3 

be denied, but the fame ill Confequence might follow, 
if they were allowed to admit and retain in their Houfes 
fuch only, as were the Workmanfhip of foreign Ar- 
tifts ? Befides, God had as ftridtly forbidden the Pof- 
feffion of Images, as he had the Making of them; 
for his Commands are peremptory, that in all their 
Conquefts over the Heathen , they (hould be fure 
to (fj burn their Figures ^ and deftroy their graven 
Images. What fhall we fay then to this Cafe of 
the Tribute' Money^ which had Cdefars Image upon it, 
and yet was as much handled and ufed by the 
Jews^ as any of their own Sides? Is it not then plain, 
they had no Scruple in carrying dbout with them their 
Emperor s Images on their Coins ? And why then (hould 
it be held unlawful for the like Money to come out of 
their own Mint ? We are farther encouraged in this 
Opinion by the Teftimony of the ^ewijh Doctors, who 
generally agree, that even Statues themfelves ( which 
certainly are more liable to Objection, than bare Heads 
upon Medals, and thofe only in Profile ) were (u) allow- 
able in the Houfes of the Jews^ provided they were kept 
only for Ornament-fake, as Pieces of HouQiold-Stuff^ and 
not upon a Religious Account. And therefore (x) W. 
Schikard (an Author well-efteem'd of for his Knowledge 
in the Jewijh Cuftoms) has for this very Reafon de- 
fended the Lawfulnefs of their ftamping an Image upon 
their Coins ; and he informs us, that thofe very Rabbins^ 
who would not permit the Pofleffion of entire Statues^ 
would yet allow of fuch Sculptures^ as had only a Head 
or Face upon them. Jofephm indeed feems to be of a 
contrary Opinion, as if all manner of Images were ut- 
terly prohibited by the Divine Law, and it were unlaw- 
ful for a Jew to be fo much as the Owner and PofiTelTor 
of them. But (y ) Mr. Selden has obferved, that Jofe^ 
phu^ herein, as he does upon many other Occafions, dif- 
fers from the Talmudical Doctors, and therefore his Au- 
thority is not great among the Jews : Befides, when all 
the Paflages which are urged from his Hiftory, upon this 
Controverfy, are duly confider'd, they will be found on- 

(/) Exod. xxxiv. 13. Numb. Mxiii. 52. (x) W. Schikard Tarldi Regum Per- 

Deut. vii. 5. fise, in Prooem. p. 35. , » 

(«) SelJcn dc Jure Nat. & Gent. (y) De Jure Nat. & Gent- L. 2: 

juxta Hebrxos. L. 2. c. 7. & c. S. c. 8. 


2^4 ^^^ Hereditary Right of the 

ly to prove, that fuch Images were never to be endured 
within the Jewi.lh Government, which were originally 
intended for Idolatrous Ufes ; or were purpofely form'd 
and eredled to do Diflionour to the God of Ifraeh Thus 
for inftance, JofephiM (z) tells us, that when Pilate cau- 
fed fome Roman Soldiers to march into Jemfalem with 
the Bup of Ccefar wrought upon their Enfigns, the Jem 
tumultuoufly exclaim'd againft it as an open Subverfion of 
their Laws, and would not be pacified, till he had re- 
moved thofe Occafions of Offence out of their Sight. 
Now the Reafon of this was plain ; the {a) Romans paid 
a Religious Worfliip to their Enfigns ; the chief (^) Stan- 
dard of their Legions bore an Eagle at the Top of it, in 
a little Shrine ; and certainly was accounted more Sa- 
cred by thofe Idolaters, when the Pourtraitures of their 
Emperors were the more confpicuous Ornaments of it. 
So that if we fhall ftill affirm, that the bare Heads of 
their Emperors (without any Regard to the Divine Ho- 
nours paid to them) created that Abhorrence in the 
Jews ; we (hall find it impoflible to give a Reafon, why 
thofe which were upon the Roman Coins, fliould give 
them no manner of Difturbance. Again, the fame Hi- 
ftorian (c) relates, that Herod having erected a golden 
Eagle over the great Gate of the Temple, the Jews 
look'd upon this as an Affiront to their Law, and would 
not be at refl till they had pulfd it down ; but this 
likewife can only ferve to fliew, that they thought their 
Temple profaned by fuch an Image ; and does not prove 
the Unlawfulnefs of being Owner of the like Sculptures, 
when only intended as Furniture for private Houfes. 
I fliall only now add, that had it been reputed fo high 
a Crime in a Jew^ to ftamp an Image upon his Coin ; 
either Agrippa the Great (who is reprefented to us by 
(d) Philo and (e) Jofephus as a zealous Obferver of the 
Laws of his Religion) would not have been (f) guilty 

(z.) Jofephus Archaeol. L. i8. c. 4. 

{a) Tertullian. Apolog. Religio Ro- 
manorum tota Caftrenlis Signa venera- 
tur, Signa jurat, Signa omnibus Diis 

(b) Dion Caffius, 1. 40. fpitthng of 
the Roman Enfign, ''Er/ 3 vi<i< u.iy-iy{, 

(f) ArchaeoJ. 1. xj. c. 8. Et de Bello 
Jud. 1. 1, c. 21. 
((/) Philo Judxus in Legat ad Caiuia. 

(t) Archsoh ]. 18. c. 7, Yiai tI 

yxv mtIy ny'.v dyyeim, xj^i »'//«©« T/f 

( i) See an ^ccDunt sf one of his Qiru 
mth 4 Head, upon it, and the Infcription 
BA2IAF.->I'2 MEFAS AFPinnAS *!. 
A0KAATAI02, in Hardouin de num- 
mis Herodiadum, p. 1 5. Et Ez. Span- 
hem, dc Praert. Namilin. Diff 8. p. <22. 
Vol. I. foh ^ 


Crown of England ajferted, &c. 16^^ 

of it ; or Jofiphm (who is forward endugh to take no-» 
tice of any Slips of this Nature in the Jewi/h Princes) 
would not have fail'd to cenfure him for it. And now 
from thefe Obfervations I am willing to conclude, that 
the Conjedure I have propofed, has Ibme Shew of PrO' 
bability on its fide ; but nothing will give it a better 
Countenance, than a Comparifon with that, which af- 
ferts the Romans themfelves to have been Comers of the 
Tribute- Money^ whereof we are now fpeaking. 

The common Expofition is this • Caefar coins Money 
now in Judea, therefore he is in Fojfejfion of that Country ^ 
and confequently is the lawful Governor of it. Here we 
have the (everal Propofitions in their natural Order, and 
the full Courfe of our Saviours Argument. But if this 
is a right State of the Matter, it will follow, that our Sa- 
z'iour us'd a great deal of Art and Contrivance to prove 
that, which was not in the Queftion ; for he calls for a 
Sight of the Tribute- Money.^ and demands what was the: 
Image and Superjcription^ for no other End and Purpofe, 
but only to prove, that Caefar was in Foffeffion of judea^ 
of which no Man then living in that Country could 
poffibly doubt : For the Roman Legions and Gover- 
nors every where demonftrated, who were their Ma- 
fters ; and would not fuffer any Scruples to arife in 
their Minds upon that Account. But, Secondly^ it iscon- 
feiTed, the Queftion put by the Pharifees was concerning 
the Title of thefe Governors ; whether they had fuf- 
ficient Authority to challenge Subjedion, and might be 
obeyed as Lawful Sovereigns : But to this it cannot be 
faid (according to Grotius and his Followers) that our 
Saviour gave any fatisfaftory Anfwer ; for to affirm ( as 
thofe Gentlemen have done) that he inferred Cdsfars 
Right from his FoffeJJion.^ is to tell the World, that he 
maintain'd Confequences, which did not follow from 
their Preraifes, and introduced a new. Logick as well as 

Another Conjedure, much favoured by very emi- 
nent Authors, is this ; That the Infcription upon the 
Tribute' Money was very probably Judoea Capta ; and there- 
fore the Jews^ by paying their I'axes in fuch Coin, did 
in EfFed acknowledge, they were a Conquer'd People, 
and confequently bound to comply with fuch Demands 
of the ViHors^ as necefifary for the Prefervation of their 

Y y y Lives, 

i66 The Hereditary Right of the 

Lives, and remaining Liberties; for fuppofing the /^ow^rz 
Conqueft never fo unjuft, it might be lawful however to 
pay them Tribute ; which was the Point the ?harifees 
pretended to be fcrupulous in. But this Opinion has 
the Misfortune to want a Foundation to fupport it ; for, 
' by the Confeffion of all Learned Men, no fuch Coin, 

with Jud<ia Capta^ has hitherto been met with, before 
Vefpajians Reign. (g)Occo^ it is true, mentions one of 
Auguftus with that Infcription upon it, which he be- 
lieves was coined upon the Taking of Jemfakm by So- 
fius : But it is obfervable, he never faw it ; for he does 
not tell us, what the Metal was ; which he never fails to 
do, when he gives an Account of Medals he had feen, 
or was well informed about them, (h) Mr. Selden con- 
fefles, he could never hear of any fuch Coin ; and none ' 
of the Antiquaries fince his Time (after the moft dili- 
gent Enquiries that could be made) have been able to 
difcover fuch a Curiofity. Befides, it is not to be ima- 
gin'd, that any fuch Coin (liould be ftruck by Auguftus^ 
or in Compliment to him ; for Jemfakm was never ta- 
ken by him, or any of his Generals : During the Tr'ium^ 
Qj'trate indeed, the Eaftern Part of the Roman Dominions 
being allotted to M. Anthony^ he ordered Sofius^ one of 
his Lieutenants^ to lay Siege to Jemfakm ; who foon 
. made himfelf Mafter of it, and placed Herod in the 
Throne ; but the Honour of that A6tion belonged en- 
tirely to M. Anthony and So/ius^ not in the leaft to Au- 
guftus ; who therefore cannot be fuppofed capable of ar- 
rogating to himfelf the Glory of a Victory, which was 
by no means his Due. 

I R E T u R N now to the Do£tor, who being refolved 
to difpute every Thing aiTerted by his Adverfaries, calls 
in Queftion the Authority of the C^firs^ particularly of 
Tiberius; and will not allow him a Right to govern 
either the Romans^ or Jews. If we grant the Lex Regia 
to he genuine.^ fays our (i) Author, (which hath been denied 
in a Tra9 de Fiitione Legis Regiae) yet what is this to 
Tiberius'j Titk ? The Lex Regia did not entail the Em^ 

(^) Occon. Nufflifm. p. 52. Captis ^ EAASKTIAS. Viaoria Palma innjtejTi 
Souo Hierofolymis. KAI2AP AT- cernua in clypeo hxc fcribens. 
tOTXl. caput Augufti lOTAAtAS (/;) De Jure Nat. & Gent. J. 6. c. 17. 

(i; Fievf, p. 8p. 


Crtyiv;^ of England affened, &c. 

pire on Auguftus'j Pofierhy ; and if it had^ Tiberius was 
none of them. 

Here we fee the Doctor doubts of the Credit of 
the Lex Regia ; however he is pofitive, that Tiberius 
could derive no Benefit from it. But why does he 
fufped the Lex Regia to be a Fofgery ? Truly for this 
admirable Reafon, becaufe a certain (k) Dutch Writer 
has been of this Opinion, in a Treatife upon that Sub- 
ject. The Do6tor (hould not, methinks, have forgot 
Buchanan upon this Occafion (as good an Author as that 
he has cited j who, in his Book de Jure Res^ni apud Sco^ 
tas^ firft made Objections againft the Validity of this 
Law ; but I muft beg Leave tp tell him, that ( 1) Arch- 
bilbop VM-, (m) Mt. Selden, and (n) Mr. Thorndike^* 
(whofe Judgment will always deferve as much Regard, 
as the Perfon's he referrs to> were of another Perfua- 
(ion. The Account they give of this Matter, is this ; 
That in the Beginning of the Roman Empire the Lex Regia 
was made^ by which the People conferred upon the Prince aU 
manner of Power and Authority ; and this they aflure us, is 
attefted by Vlpian^ and Juflinian^ in his Infiitutes. Be- 
fides, there is this day extant in the Capitol^ a Frag- 
ment of that Law, in which the Powers beftowed upon 
Vefpafian by the Senate.^ are recited ; and they are there 
faid to be fuch, as his Predeceffors had enjoyed. Which 
now of thefe two Laws will the Doctor, or his Author, 
have to be a FiBion ? Is it that mention'd by Vlpian ? 
Surely that is impoffible ; it is not certainly to be ima- 
gined, that fo eminent a Man would endeavour to im-» 
pofe upon the Romans in a Matter they could as eafily 
know as himfelf. Mdft we fay then, that the Fragment 
relating to Vefpafian is a Cheat ? But this would not be 
for the Do6lor's Purpofe, were it true • and befides, we 
are well informed of the contrary ; for (o) Monfeignor 
Bianchini (a Perfon of no mean Figure in the Common- 


(i) I gnefi the DoElor's Author Is Mar- 
tin Schockius. 

(/) The Power of the Prince, p. 68. 

(w) ScldenV Titles of Honour, c 5. 
p. 2. p. 591. and in his Notes on Fleta. 

(») Thorndike'^ Review of the Primi- 
tive Government of Churches f c. 1 2. p. 48, 

(9) Quamobrem, riec falfi damnavc- 
iim fragmentum hoc, qu6d non fatis 

prudentirt aliqui fecerunt ; cum diflione, 
fcriptura, & notarum Lineamentis con- 
vincantur erroris fui; ut duo noftromm 
temporum clariffima Romanse antiquita- 
tis iumina obfervarunt , Blanchinus & 
Fabrettus, quorum Teftimonium ad hu- 
Jhs Libri extremum adjiciemus. Vin- 
centius Gravina de ortu & progreflu Ju- 
ris Civilisj ed. Lipfi«, p. ijp. 


268 The Hereditary Right of the 

wealth of Learning) has given it under his Hand, that 
after an accurate Examination of that Monument, he 
found all the genuine Marks and Signs of Antiquity 
upon it ; and wonder'd, that any (hould fufpedt it to be 
a Counterfeit. However, the Dodtor asks, what is this 
to Tiberius'/ Title ? Now this Queftion is anfwer'd by 
this Fragment of Vefpafons Lex Regia ; for in it ' v^e (p) 

* find f befides the Power (^) of entring into vphat Leagues 

* and Treaties he pkafed^ and many other Privileges) 
' the high Prerogative conSrmed to him, (r) that to 
' what Laws foever, either of the Senate or People, it 

 ' was ordained, that the Emperors Auguftus^ Tiberius^ 
' and Claudius were not tied, from thofe he (hould be 
•* loofe alfo; which, according to the Mind of the Civi' 
' lians, is exprefled thus ; " (s) They are loofed from the 
haws {as the Letter of their own Language freaks) that isy 
they are free from all coaBiue Obedience to them^ and are 
held by none of the written Ordinances. From whence it 
is evident, that Vefpajian was to enjoy the fame Privi- 
leges and Prerogatives, that Augujius and Tiberius did ; 
but they had no Prerogatives, but what were given 
them by the Senate and People ; and becaufe all the 
feveral Branches of the Imperial Authority were fpeci- 
fied in the Grant, the ancient Lawyers gave it the Name 
of Lex Regia. But I fhall not contend with the Do- 
dor about this Nicety ; for I do not conceive it to be at 
all material, by what Appellation the Law was diftin- 
guiflied, which conferred the Sovereign Authority up- 
on Tiberius^ provided the Fa6t can be proved, that by 
fome fuch publick Inftrument they did really part with 
their (t) Liberties, and devolve all their Power upon 
that Emperor. Now I think this may be demonftrated 
beyond all Contradiction, not only from this Infcription, 
but alfo from the Roman Hiftorians, who abundantly fup' 
ply us with Evidence for this Purpofe. 

C/») Thefe are Archhijhop UflierV mm 
Wards, in his Power of the Prince, 
p. 68. 

(^) Fcedufve cum quibus volet facere 
liceat. Vide Gruteri Infcript. Tom. i. 
p. 242. Ed. Amftel. 1707. 

(r) Utique quibus Legibus plebifve 
fcitis fcriptum fuit, ne Divas AugujinSy 
Tiheriujve JhUw Cxfar Auguftns, Tibt- 
riufque OnHditis Qfar Ang. Cermmcus 

tcnerentiir, iis Legibns plebifque fcitis 
Imp. Cafar P^efpa/innfH folutus fit, ibid. 
Vide etiam Dion. Caff. 1. 53. p. 516. 
(/) Dion Cailius, Hift. Rom. 1. 55. 

A«Auo3 "T^" v'olJi.av, d{ auTdi To, Aelfi- 

dvayKcucii roy.i(nu( eJcr/, )^ iS'itI irff 

Q) Dion Caffius, 1. 53. p. 518, 5ip. 


Croivn ofEngland a[jertcd, &c. i(Jp 

Upon the Death of 'Augufhs^ nothirtg wis ever 
more remarkable, than the Contention between the Peo- 
ple of Rome and Tiberius ; the firft in their Endeavours 
to impofe, the latter to decline the Empire. The («) Se- 
nate fell upon their Knees to him upon that Account ; 
and the ableft of their Orators folicited him in the moft 
earned: and importunate manner, to take the Govern-' 
ment upon him ; fo that at length he was rather fubdu- 
ed, than perfuaded ; and it feem'd evident, that he ac- 
cepted of the Imperial Dignity more to gratify others, 
than to pleafe himfelf. (z) It was wonderful to fee^ 
with what Hafte and Precipitation Perfons of the higheft 
Rank and Quality labour'd to part with their Liberties : * 
The Confuls firft began to take the Oath to him ; foon af- 
ter the Senate^ the Soldiers^ and the F-eople ; and all this 
Forwardnefs was (hewn, before he would vouchfafe to 
give them Hopes of being their Emperor. He was nd 
Iboner upon the Throne, but the Senate offered him (y) 
all manner of Honours, Titles, and Powers; and in a 
word, no publick AB was done by him, which could not 
fufficiently be warranted and juftified by his (z) Tribuni^' 
tiarij Confular^ Proconjular^ and Pontifical Authority, or 
that of fome other Offices, with which he was inverted 
by Decrees of the Senate. So that the DoiSor will be 
hard put to it to prove^ that Augufius had more Authori- 
ty conferred upon him by the Senate.^ than they gave to' 
Tiberius ; Indeed we may venture to fay it, that the 5e- 
nate was never more profufe in their Oblations to any 
Emperor, than they were to Tiberius ; and therefore if 
their Confent and Approbation was fufficient to make 
him a Rightful Governor, he certainly had it in as great 
a Degree, as his PredecefTor could pretend to. Is it not 
then furprizing, what the {a) Do6tor tells us, that Tibe- 
rius tiiound himjelf into the Government^ and the Submijfion of 
the Romans (fuch as it was) was his only Title ? As if the 
Romans had ever made an humbler Submijfion to any of 
their Emperors ; and the Submijfion of a People that had 

(a) Tacit. Annal. I. i. c. ii. Suetoii. gis falfi ac feftinantes. Confules primi 

ilti Vitl Tiberii, c. 24. Tandem quafi in verba Cxfaris juraverc, mox Senatus, 

coaftus, & querens miferam & onerofam milelquc & Populus. 
fibi iiijungi fervitutem, recepit Impe- (y) Dion Caflius, 1. 57. p. 6c2, 607. 

num. & 1. 58. p. 629, 632. 

{x) Tacit. Annal. 1. i. c. 7. Roma; (i) DionCaflius, 1. 53. p, 508, yi9- 

mere in Servitium Confules, Patres, c. ^18, $ip. 
Eques. Quantoquis Jlluftrior,tantoma- (<«) Fkw, p. po. 

Z z z their 

270 The Hereditary Right of the 

their Liberties entirely at their own Difpofal, were not 
fufficient to create a good Title. 

His next Queftion is, (b) Whether the Romans them- 
fehes were Rightful Governors of Judaea ? And the Reafon 
of his Doubt is, becaufe there appears no ezprefs ASi of the 
Refignation of the Sovereign Power to the Romans, like that 
of the LexRegiafo Auguftus. If nothing lefs than the 
very Inftrument of Refignation will fatisfy the Doctor, 
we cannot help it ; but there are many other Learned 
and Judicious Men in the World, who will be contented 
with (c) Jofephus\ Authority in this Matter. I need not 
trouble the Reader with all the Particulars of this Piece 
 of Hiftory ; for what Reafons Pompey laid Siege to Jeru- 
falem and took it ', and how the Jews came firft under 
Subjection to the Romans*. It is certain, th?it Hircanus^ 
their Lawful King, was the great Inftrument of bringing 
them under this Yoke ; for it was his Party, that fur- 
rendered Jerufalem to Pompey ; and by his Confent the 
Romans were firft admitted into a Share of the Govern- 
ment of that Country ; and he contented himfelf with 
the Title of (d) King, under the Roman Protection : Up- 
on this Account (e) learned Men have affirm'd, that the 
Jews made a Vedition of themfelves at that Time, and 
were ever after bound, by their own voluntary A61, to 
pay Obedience to the Romans^ as their lawful Mafters 
and Governors. By Virtue of this Power and Authori- 
ty, Augufius conftituted Herod King of Judaea^ and af- 
terwards his Son Archelaus ; but not long after Archelaus 
being deprived of his Kingdom, and fent into Banifli- 
menr, (f) Jud^a was then firft reduced into the Form of 
a Roman Province by Augujius ; and the Government of 

(>) f^iew, p 90. fin^ an Emhafy to Auguftus, of Fifty of the 

^ (i) He fitys, the nkole Nation of the princip^.l Men of their Nation, lefceching 

Jews fiforc to Auguftus, and Herod, ix- him, that they might be no longer govern'a 

cepting the Pharifces. Archseo]. ]. 17. hy Kings, but for the future, ma Part of 

c, 3. the Province of Syria, their Country might 

(d) Dion Caflius, p. 37. & Jofeph, be under the jidminijlration of a Roman 
1.1. deBelloJud. c. 8. M/^gijirate, Appointed hy the Emperor; 

(e) The Author of the Exercitation and in this Requefi tiny mre Jeconded by 
concerning Ufurped Powers, p. 87. Ed. Eight Thonfand Jews, who were then In- 
1650, 410. And DoSior Hammond oa h.U'ii ants of Rome. '^Hy 3 KsjaAcKo;' «;- 
Watth. xxii. v. 16, '"."''^^'^ d^ieiinaf, /3afMt-'ttf, j^ ^' 3 

CfJ K CafauboB. exerc. adv. Baro- "PX"' 't'^»^\dxii^^ ^ •3r£«c3 j'xL-j 3 2i/- 

riium, App. N. 6. Exerc. I. And Jofe- ^'"^ ytfov'ora.!, \sm1a.m^cu yoli Uiiat 

phus inforr^s us, (Archxol. 1. 17. c. 12.) '^■-(^■■'fofj.VoK re/juyolf. Winch is ano-, 

that this »<« vhat the Jews thcrufdves de- ''"''' '^'"''J' remxrhable InJIance of their to- 

fired, upon the Death of Heiod j for they ''""'*7 SMbjemm to t^e Roman*. 



Crmn of En^lmd ajfertedy &c. 271 

it committed to a Procurator under the Vrefident of Syria. 
This was the State of the "Jews at the Time of our Sav'u 
ours Death, and for fome Years before ; and whatever 
the Dodor may think of it, there was no Confcientious 
Jeiv then in Being, but might fafely have fworn Alle- 
giance to the Roman Emperors. For what Prince, or Fa- 
mily would have been injured by it? Or was there any 
one living, who could pretend a better Right to the So- 
vereign Power over them ? The Sons of Herod were un- 
der an abfolute Dependency upon the C^f/arj, and there- 
fore could not prefurae to lay any Claim to that Mo- 
narchy ; and the Race of the (g) Afamonm^ the old He- 
reditary Kings of the Jews^ was entirely extin(3 : The 
Remans therefore could not poffibly be Vfurpers.^ when 
no Title could be fet up againft them ; and for that very 
Reafon were lawful Fojjejfors ; becaufe no Proprietor 
was in Being, who could charge them with doing him 
Injuftice. In this Cafe, Self-Prefervation^ and the Publick 
Good (Principles too often abufed upon other Occafions) 
did oblige the Jews to fubmit to the Romans., and aC' 
knowledge their Authority, even though they had never 
before yielded themfelves up to their Government; for 
though, upon the utter Extind:ion of a Royal Family, 
Subjeds are at Liberty to choofe the next Succeflbr who 
fhall reign over them ; yet if any Perfon, in fuch a 
Jundure, (hall get Poffejfion of the uacant Throne, evert 
by Force and Violence ; it is then fo much for their 
Intereft, that it becomes their Duty, to comply with the 
Neceffity of Affairs, and fuffer him to be their King, 
whom they cannot attempt to depofe, without the ap- 
parent Ruin of their Lives and Fortunes. Thus the 
, Dodor fees, his Adverfaries are willing to allow, that 
PoffeJJion gives a Right in certain Cafes ; 'viz. when the 
Subjeds preferve themfelves by yielding Obedience to 
the King de Fa&o^ without violating the Rights of a 
Third Perfon : But this Conceffion will do him no 

(gj Jofephus ajfures us, (ArchzoL and havin? exercised the fame Cxutlty np^ 

1. 15. c. p.) that for this Re»fon Herod on the Children of Baba, the Hiftorian 

deftroycd Hircanus, becdvfe his Right and fays, there was not then one left of the 

Title to the Kingdom oj ludxa by Blood Kindred of Hircanus. "flre Vt) (/.nJ^iy 

was unqueftionable ; a little before that, he ■CsaiMtTov la, •f 'Tpxac? o'vy^'^oeiie.f, 

had caufed Ariftobulus (the Grand/on of akka t ^A<ri\tiaif auTi^io'tov auTii, 

Hircanus) to be drorvn'd, Archxol. I. !■;. /J.>ffiv©- 'ovt©- W ci^iv!/.ctT@- e/xT»- 

c. 3. Soon after he difpatches his own ^"* "tTO.&iu rtif -»^b/^»^V««- 
Wife Maiiamne, Sifter to Ariflobulusj 


2,72. The Hereditary Right of the 

Good in his mainQueftion, ^nd hurts him in fhat whicli 
concerns the Authority of the Roman Emperor, over the 
fern ; for in this latter Cafe, as I have now ftated it, it 
was plainly lawful for them at leaft, to become their 
Subjects; and every thing rightly confider'd, their Duty 
too. It fhould be obferv'd, that had the Romans with- 
drawn their Legions and Protection, at Herod\ Death^ 
and abandoned the Jews to their own Condud and Dif- 
pofal ; the Sons of Herod would foon have torn their 
Country in Pieces ; and whoever had prevail'd, had ruled 
them with the utmoft Degree of Tyranny. On the o- 
ther hand, they had long Experience of the Humanity 
and Goodnefs of the Romans to them, by many extraor- 
ih) Vide dinary {h) Decrees made in their Favour ; and (i) Fhilo 
BecretaRo- Juddnis has giveu US 3. large Account of the particular 
frTjHd^t^', Kindnefles (hew'd to them hy Augufius znd. Tiberius; fo 
noJio''d'^° that had they been left to their free Choice, they could 
(0 In Le- not have made a wifer, than to live under the Govern- 
um.^'^^^ mentof thofe Emperors. The Doctor indeed fancies, it 
Q) Fiew will be fome Refuge to him to [k) fay, that the Jews were 
p- 90. ' forced to this Submijfion to a fuperiour Power ; but I have 
Ihewn, it was their Intereft; and certainly that Vio- 
lence is very agreeable and obliging, which compels 
Men to doThings, that are highly for their Advantage; 
that is, as becomes Rational Creatures. But fhould we 
allow it to be true, that this Submiffion of the Jews 
was forced and extorted ; it cannot poffibly do the Do- 
ctor any Service. For will he fay, that Promifes and 
Oaths obtain'd by Violence, from a People that had 
Power to make them , are of no Obligation ? What 
then will become of Leagues and Treaties between Prin- 
ces, after a long and bloody War, when difadvantageous 
Conditions of Peace are impofed upon the unfuccefsful 
Party, and they muft either accept of them, or refolve 
to profecute the War to their evident Ruin ? Will the 
Doctor maintain, that thefe Treaties are Void and of no" 
Effe(5t, and that the Princes, who were forced to com- 
ply with thefe Terms, may lawfully have Recourfe to 
Arms again, whenever they fee an Opportunity ? The 
Doctor knows, that Grotius^ and Sanderfon^ and all the 
ableft Cafuifts are of another Opinion ; and he will find 
it difficult to anfwer their Arguments. 1 fhall only beg 
Leave to put him in mind, upon this Occafion, of the 


Cmm of 'England afferred, &Cc. ly^; 

judgment of two great Hiftbrians^ relating to this Que- 

Franvis I. King of France^ having been taken Prifoner 
by the Emperor Charles V, was fome time after fet at 
Liberty upon his Parole of Honour, by which he obliged • 
himfelf to return again ta the Emperor^ if the Condi- 
tions were not performed, upon which he was releafed. 
But Francfs being once at Liberty, pretended he was not 
bound by the Promifes he had made in Captivity, af- 
firming, that no Man under Ward could plight his Faith: 
Upon which my (/) Lovd Herbert makes this Reflexion : (/) Life of 
NevertheJefs^ 1 mufi not omit to fay^ that the Excufe of ^Z""^. ^"l' 
Francis was not generally approved of, nor his Cartel thought ' ^""'^^ ' 
juji ; for if a Prifoner of War may avoid his Promife^ hecaufe 
he made it under a Confiraint^ it would follow^ that few or 
none would be taken Prifoner s^ bat kind upon the Place 'y 
which would make the War not only more bloody and barbai- 
ronA^ but even defiroy a principal Part of that Jus Gentium, 
which in thefe Cafes has been inviolably obfervd- in all 

The other Hiftorian is the prcfenr Bi(hop ot Sdlif 
buryy who tells us, That King Henry VIII. having pre- 
vail'd with the Convocation to annul! his Marriage with 
the Lady ^nne of Cleves^ one of the Reafons which in^ 
fluenced that Aflembly was this, (m) That the King ha- («») Bifl,op 
ving married her againft his Will., he had not given a pure.^ fm.%U. 
inward^ and complete Confent : And Jince a Mans ASi is ^'^^ *• ^- 3.' 
'only what is inward .^ extorted or forced Promifes do not bind. ^'^ °' 
But the Bifliop's Cenlure upon thefe Proceedings is re- 
markable. This was (fays his (n) Lordfliip) the greatefi C«) 'WA; 
Piece of Compliance^ that ever the King had from the Clergy ; ^'^^^' 
for as they all knew^ there was nothing of Weight in the Pra- 
Contra& ; fo they laid down a mofi perniciom Precedent for 
invalidating all Publi<k Treaties and Agreements : Since if 
me of the Parties being unwilling toit^ fo that hU Confent were 
not inward^ he was not bound by it ; there was no Safety a- 
mong Men more. For no Man can know^ whether another 
oonfents inwardly: And when a Man does any thing with 
a great Averfion^ to inferr from thence., that he does not in- 
wardly confent^ may furnijh every one with an Excufe^ to break 
loofe from all Engagements ; for he may pretend he did it un- 
willingly. Laftly, The Doctor has acknowledged, that 
Zedekiah and the Jews fubmitted to the King of Babylon., 

A a a a and 

274 5^^^ Hereditary Right, &c. 

and took an Oath to him, before God had commanded 
them to do fo : But furely they did not make this Sub- 
Co) 2 Chron. niiffion willingly; it was the (0) Effedt of Force and 
i?T" fafd. Violence, which they muft either have complied with, 
That Nebu- q^ expolcd themlelves to utter Ruin : May we fay there- 
Li "S' fore, with the Do6tor, that their Oaths and Engage- 
fma^^t^Goi rnents fignified nothing, and could not bind them a^ 
to him. gainft the Intereft of their Country ? But the (p) Pro- 
xviLi^^&c. pii^f ^'^^ taught us another Dodrine, he tells us G o d 
was highly incenfed by the Violation of the Oath and 
Covenant made to the King of Babylon^ and threatens 
them with the Severity of His Vengeance upon that 
Account. The Prophet's W^ords are remarkable, and 
therefore I (liall conclude with them. Shall he frofier? 
Shall he efcape that doth fuch things ? Or^ Jhall he break 
the Covenant^ and be deliver d ? As I liue^ faith the Lord 
God, furely in the Place where the King dweUeth, that made 
him King^ xvhofe Oath he defpifidy and whofe Covenant he 
hrake^ even tpith him^ in the midfi of Babylon Jhall he die. 
Seeing he defpifed the Oath^ by breaking the Covenant (when 
to ! He had given His Hand) and bath done all thefe things^ 
be Jhall not efcape. 




Numb. 1. 

A PalTage out of Sir J. Fortefcmi Defence of the Title 
of the Houfe of Lancafter. MS. Bibl, Cotton. Otho^ 
B. I. 

ST Henrici 5" fata Chnfitan'tjfimus Vrin^ 
ceps Henricus 6'"*^ ejm filius i{y Hares^ 
Parentum fuorum <£quo ^ jujio tituh^ in jure 
Coron<£ {y Regni Angli<£ fuccejfit ; tenerri^ 
maque dtate in Regni ejmdem Regew^ nuUo 
contradicente^ fed uno omnium appla'jfu^ un- 
Bus '{y coronatus eft. Cut etiam adhuc inter ubera 'Volutanti^ 
^ nondum coronate.^ prdfatus Edmundm Comes Marchicf^ tan' 
quam h^eredi ejufdem Henrici 5", Regique ac Domino fm 
Jupremo^ cum omni humilitate ultro ligeum fecit homagium^ {y 
ad hoc faciendum qudm cekrrime potuit libentijfime j^rope- 

Pofted zmb dicio Rdmundo Comite fine Hjeredibus de cor^ 
pore fuo exeuntibus d rebm humanls ezempto^ Richardus nu' 
per Duz Eboracen/is^ Pater iftiiis Edwardi^ (jAy nepos ijiiiis 
Edmundi^mz. fiUuA Ann£ forork fudu^ tanquam proximm fibi 
hc-eres^ in Cancellaria ejufdem Regis Henrici 6" , fecundum mo- 
dum Curiae illiw^^ poffejfionem di&i Comitates fibi^ tanguam 
proximo hderedi ipjius Edmundi^ ab eodem Rege.^ tanquam d Do- 
mino fuo fupr'emo.^ deliberari petiit t^ obtinuit. Et ob hoc ei^ 
dem, ut fuo Regi <{^ Jupremo Domino^ Homagium Ligeum fe^ 
cit ; ^ pofte^t fuis indenturk.^ Sigillo armorum q^ Jigno fuo 
manuali Jignatis.^di£io Regi fuo Henrico 6'° ^e obligamt^ de fe 
fideliter gerendo liy habendo in officio Locum Tenentis fui in 
Francia^ quod ?^ diu fecit. In qaibus fcriptis ipfum Henri' 
cum Dominum fuum jupremum^ AngUdeque tly Francis Regem 

a nomi- 

Ad p. pit 


nominahat, Fofledque a partibiis Francis ad Angliam reuer-i 
Jiis^ Jimilihm fuis fcriptis Indentatis^ fuoqae Jigillo armorum 
und cum Jigno manuali fuo Jignatis^ adfidelitir fermendum ei- 
dem Domino fuo Jupremo in officio Locum4enentls fui in Hibet" 
nia^ quoad placeret Regi ipjiim revocare^ omnibus modo^ ma^ 
fty forma jum^ quibus melius poiuit^ fe afirinxii fy obliga- 
vit; Ipfumque Regem Henricum Sextum^ in illis etiam fcri- 
ptk fuvs^ fupremum Dominum fuum^ Regemque AngU^x <ly 
Francidi^ femper profitendo^ nominaviti 

Iterum etiam^ dum Rex Henricus tanta dgritudine 'vexatm 
fueratj quod Regni fui gubernaculis perfonaliter intendere non 
'valuit ; diSfus Richardus Dux Eboracenjis^ fcriptU fuis figillo 
armorum^ fuoque figno manuali notati/s^ ipfum Regem fponte 
Dominum fuum fupremum, Regemque Anglia: i{y Francia no- 
minamt ; ^ in publico Parliamento^ durante infirmitate illa^ 
ProteHorU 5^ DefenforU Anglic officium^ au&oritate ejufdem 
Tarliamentiy in fe ajfumpfit^ pleno corpore Regni in Farlia- 
mento illo^ iy fecundum jura Anglia reprdefentato ; tly di&um 
Chrifian'ijfimum Principem Henricum Sextum^ Regem Anglia^ 
fuumque fupremum Dominum in plena. Curia Parliamenti illius 
de Recordo appeUavit ; ctimque tunc temporis Rex ipfe^ objiante 
infirmitate pradi&d^ nullum fibi ad fie faciendum timorem in- 
cutere potuit. 

Item idem Richardm^ moe repetitd^ f^P^'^ facrum Corpm 
Chrijii facramentaliter Z'ijum juravit^ quod femper fidelis Jub- 
ditus icy Ligens ejfet eidem Regi fuo Henrico Sexto^ t^ pro 
pojfe fuo defenderet q^ adjuvaret^ atque pro viribus fuis totU 
ad Status fui Regii conferijationem incrementumque ageret^ 5^ 
ad ejus confirmationem Corpus Chrijii recepit. Quibus juramen- 
tis non modd corpus^ fed animam fuam^ fuumque honorem ftri' 
Biits fortitlfque^ qudm aVtquo temporali 'vinculo potuit^ obli' 

Edwardus etiam ijie filius fuus^ jam Regni Vfurpator^ con> 
fimiliter in prafentid Cleri totius Provincide Cantuarienjis^ ad 
tunc convocati in Ecclefid S. Pauli Londonij^ fuper crucem Can- 
tuarienfem juramt folemniter^ quod femper honor aret Dominum 
fuum fupremum Regem Henricum 6'"^, ipfumque pro Rege 
Anglideac Domino fuo fupremo acciperet^ ^ fibi humiliter^ ut 
Regi fuo^ totd md fm obediret^ fy P^ft^a in publico Parlia^ 
mento juramentum fuum repetiit pariter 5^ renoziavit. 

Ex quibus pr^emiffis liquet dequo intuentibus lumine^ quod 
fi Progenitores Edwardi hujus nunc ufurpantis^ « principio jus 
aliquod ad coronam t/y regnum AngU<£ habuijpnty quemadmo^ 



(Him nunqmm habmrunt^ ah illo tamen jure per promij/iones & 
affirmationes fuas^ fub JigilUs {y Jignis fuis manualibus robora- 
tas^ per Renumkuories Jpontaneas^ tarn tacitas qudm ezprejfas^ 
etiam in Parliamento tiy Convocatjone Ckr'i^ qudi maximdi auHo- 
ritatts furit^ affirmatas^fy per juramenta filemnia fponte faSa^ 
receffum efi plenarU tjy abfolute : Adeoque Ji habuiffent jus^ 
prout not! hahuerunt^ omnis tamen ma petendi illiii^ eis eorum 
fa&o propria praedufa efi, idemque jus in lege adnihilatum eztat 
tiy eztin&um. 

Numb. II. Adp.^iS. 

The whole Proceedings of Richard Buke o/YorkV Claim of 
the Crown againfi Henry VI, and the Judgment of the 
Houfe of Peers thereupon^ as it is tranfcrib^d from the Par- 
liament Rolls in Dr, Brady 'j Enquiry into the remark- 
able Inftances of Hiftory, and Parliament Records, 
ufed by the Author of The Unreafonablenefs of a New 
Separation on Account of the Oaths, t/yc. p. ^ i . to 
39. If^ith Dr. Brady'j Inferences from thence againfi that 

Memorand. 'T^ HAT the xvj day of O&obre^ the ix Rot. hii; 

X day of this prefent Parlement, The 3pJ^-^- 
Counfeill of the right high, and mighty Prince, Richard 
Due of Tork^ brought into the Parlement charabre a 
Writeing, conteigning the cleyme and title of the right^ 
that the feid Due pretended unto the Corones of England^ 
and of France., and Lordfhip of Ireland; and the fame 
Writeing delivered to the right reverent fadre in God 
George Biftiop of Excefire.^ Chauncellour of England; defiring 
him, that the fame writeing might be opened to the 
Lordes Spirituelx and Temporelx aflembled in this prC" 
fent Parlement ; And that the feid Due myght have brief 
and expedient anfwer thereof : wheruppon the feid 
Chauncellour opened and (hewed the feid defire to the 
Lordes Spirituelx and Temporelx ; askyng theQueftion 
of theym, whether they wold, the faid writeing (huld be 
openly radde before them or noo. To the which Que- 
ftion it was anfwered and agreed by all the feid Lordes> 
Inafmuch as every perfone high and lowe, fuying to this 
high Court of Parlement, muft be herd, and his defire 
and peticion underftand, that the feid writeing (huld be 
^^adde and herde, not to be anfwered without the Kings Com^ 


n. ip. 

n. II. 


maundement^ for fo much as the matter is fo high^ and of f§ 
grete tvyght and poyfe ; which vvriteing there than was 
radde ; The tenour whereof followeth in thefe words : 
It is not to be forgotten^ &c. as in Numb. 19. followeth. 
n. 12. c'-iAnd afterward the xxvij day of O&obre^ the x day of 

this prefentParlement,thefeidC/6fl«nc^//oar fhewed and de^ 
clared to the leid Lordes Spirituelx and Temporelx, 
being in the fame Parlement, how that the Counfeill of 
the feid Due of Tork gretly defired to have anfwer of fuch 
writeing, as upon the xvj day of O&obre laft pafTed was 
"'■■' l^'^put into this prefent Parlement, on the behalf of the 
leid Dm ; and thereupon asked the feid Lordes, what 
they thought was to be doon in that matier. To the 
which Queflion it was anfwered, and thought by all the 
feid Lordes, That the matier was Jo high^ and of fuch wight.^ 
that it was not to eny of the Kings Subgetts to enter into com- 
munication thereof without his high commatmdement^ agree^ 
went^ and ajfent had thereto. And ferthermore, forafmuch 
as the feid Due defired and required brief and undelaied 
anfwere of the feid wryteing, and in efchueing and avoyd- 
ing of grete and manyfold inconveniences, that weren 
lykly to enfue, if hafty provifion of good anfwere in that 
behalfe were not had ; it was thought and agreed by all 
the Lordes, that they all fhuld goe unto the King, to de- 
clare and open the feid matier unto his Highnefs, and to 
under fiand what his good Grace wold to be doon ferther therein. 
And theruppon incontinent all the feid Lordes Spirituelx 
and Temporelx went unto the King's high prefence, and 
therunto opened and declared the feid matier by the 
mouth of his feid Chauncellour of England; and the feid 
matier by the King's Highnefs herd and conceyved. It 
^leafed him to pray and commaunde all the feid Lordes^ that 
they fhuld Jerche for to fynde^ in as much as in them was^ all 
fuch things as myght be obje&e and laide ajenji the cleyme and 
title of the feid Due. And the feid Lordes befaught the 
King, that he wold remember him, yf he- myght fynd 
eny refonable matier, that myght be objected ayenft the 
feid cleym and title, in fo moche as his feid Highnefs had 
feen and underftonden many divers Writings and Chro- 
nicles; v«'heruppon on the morne, the xxviij day of 
OSiobre^ the xj day of this prefent Parlement, t-he forefeid 
Lordes fent for the Kings Jufiices into the Farlement'chambre^ 
to have their Avis and Counfeill in this behalf; and there 



delivered to them the writeing of the cleyme of the feld 
Duc^ and in the King's name gave them ftraitely in com- 
niaundement, iadly to take avifament therin, And t6 
ferche and find al] fuch objedions, as myght be leyde 
ayenft the fame in fortefying of the King's right. 

W hereunto the fame jufiices^ the Monday^ the xx day 
of O&obre then next enfuing, for their aunfwere upon 
the feid writeing to them delivered feiden, that they 
were the King's Juftices, and have to determine fuch ma- 
tiers as come before them in the Law ; between partie 
and partie they m.ey not be of Counfeill: And fith thi^ 
matier was betweene tlie King and the feid Due of Tork 
as two parties, and alfo it hath not be accuftumed to calle 
the Juftices to Counfeill in fuch matiers ; and in efpeciall 
the matier was fo high^ and touched the Kings high Eftate 
and Regalie^ which is above the law^ and pajfed their lerningy 
-wherefore they durjl not enter into eny communication thereof^ 
for it perteyned to the Lordes of the King*s blode, and 
thapparage of this his lond, to have communication and 
medle in fuch matiers; And therefore they humble by- 
fought all the I^rdes, to have them utterly excufed of any 
avyce or counfeill by them to be yeven in that ma- 

And then the feid Lordes, corlfidering the aunfwere 
of the feid Juges^ and entending to have the avice and 
good counfeill of ail the King's Counfeillours, fent for all 
the King's Sergeaunts^ and Attournay^ and gave theym 
ftraight commaundement in the King's name, that they 
fadly and amfely fhuld ferche andfeke all fuch things^ as might 
he befi andftrengefi: to be aUeggedfor the Kings auaile^ in ob- 
je&ion and defetyng of the feid title and cleyme of the feid 

Whercunto the feid Sergeaunts and Attourney., the Wenp 
day then next enfueing, anfwered and feiden, that 
the feid matier was put unto the King's Jujlices, and how 
the Monday laft pafled the fame Juftices feiden, and de- 
clared to the feid Lordes, that the feid matier was foo 
high, and of fo great wight, that it pafled ther lerning ; 
and alfo they durft not enter eny communication in th^t 
matier, to yeve any avyce or counfaill therein : And 
fith that the feid matier was fo high^ that it paffed the lerning 
of the Juftices^ it mufi needs excede ther lerning ; and alfo they 
durfi not enter eny communication in that matier ^ and prayed 

b and 


and befought all the Lordes to have them excufed of 
yevyng eny avyce or counfaill therin. 

To whom it was aunfwered, by the avys of all the 
Lordes, by the feid Chaumelkr^ that tliey myght not lb 
be excufed ; for they were the King's perticuler Coun- 
iaillers, and therfore they had ther fees and wages : And 
as to that the feid Sergeaunts and Attourmy feiden, that 
they were the King's Counfaillers in the Law, in fuch 
things as were under his audlorite, or by Commiffion; 
hut this matter was above his au&orite^ wherein they myght not 
medle^ and humbly befought the feid Lordes to have them 
excufed of yevyng eny counfaill in that raatier : and it 
was aunfwered them agayn, that the Lordes wuld not 
hold them excufed, but let the King's Highnefs have 
knowleche what they faid; and theruppon the feid 
Chauncelkr remembred the Lordes Spirituelx and Tempe- 
relx of the feyings and excufes o^ the Juft ices ^ and fey- 
ings and excufes of the Sergeaunts and Attourney^ and aljb 
the grete commaundement of the Kings Highnefs^ that they 
had^ tofind all fuch obje&ions^ as myght he mooft mighty to de^ 
fend the Kings right and title^ and to de fete the title and cleyme 
of the feid Due of York ; And alfo that the King myght 
underftond, that the feid Lordes diden their true and 
faithful devoire and acquitall in the feid matier, defired 
all the Lordes that every of them Jhuld fey what he cowed Jey in 
fortefying the Kings title^ and in defeteing of the cleyme of the 
feid Due : And than it was agreed by all the Lordes, that 
every Lorde (huld have his fredome to fey what he wold 
ley, without eny reporting or magre to be had for his fey- 
ing; And theruppon after the feiyng of all the Lordes 
every after other, It was concluded, that thes raatiers and 
articles, here undre writen, fhuld be aleged and objedte 
ayenft the feid cleyme and title of the feid Due. 
bbjeftio Firfi^ It is thought, that the Lordes of this Lond muft 
]um"pra-"' needes call to their remembraunces, the grete othes the which 
diaum, f}jgy haqje made to the King our Soveraigne Lorde^ the which 
may be leyde to the feid Due of Tork ; and that the Lordes 
may not hreke thoo othes. 
'2. /few. It is thought alfo, that it is to be called to re- 

membraunce the grete and notable ABs of Parlements^ 
made in divers Parlements of divers of the King's Pro- 
genitours. The which Ads be fufficient and refonable to 
be leyd againe the title of the feid Due of Tork. The 



which A6ts been of moche more audlorlte than any Chro- 
nicle, And alfo of au&orite to deftte eny manner of title be 
made to eny perfone. 

Item^ It is thought, that there is to be leyd agayn the 3. 
feid title dhers entaiUs made to the heires maks^ as for the 
Corone of England^ as it may appere by divers Cronicles 
and Parlements. 

Item, It is thought, yf the feid Due fl)uld make eny 4* 
title or cleyme by the Lyne of Sir Leonell^ that the fame 
Vuc fliuld berethe Armes of the fame LeoneU^ and not the 
Armes of Edmund Langley^ late Due of Tork. 

Item, It is to be allegged agen the title of the feid 5* 
D«c, that the time that King Heny the fourth toke upon 
him the Corone of Englond^ he faid he entred and toke upon 
him the Corone as right enheriter to King Herry the third^ and 
not as a Conquerour. 

To the which Articles the feid Dm of Tork gave his an- 
fweres in writeing as folowen. 

Here under folowen the anfweres of Richard Plantage' Refponfo-' 
nef, called commonly Due of Tork^ Sec. to certain raifons SJ^'^fd" 
and colours alleged, as it is feid, ayenft the matier of his o^jeaionci 
right and title, &c. ^ praiaS! 

Fir^, Where it is feid, that it is thought, that the "• M- 
Lordes muft nedes calle to their remembraunce the grete 
Othes which they have made to the King^ which may be leid 
to the feid Duc^ and that they may not breke thoo 

The feid Richard aunfwereth and faith, that every man, 
under the peyne of everlafting dampnation, is bounde 
to obey to the lawe and commaundements of God, by 
the which lawe and commaundements trouth and juftice 
owe to be preferred and obferved, and untrouth and in- 
juftice laid apart and repreffed : and foe it is, that of this 
bond, and duetye of obedyence to God's lawe, mo man 
may difcharge himfelf by his owne deede or aH^ promije or 00th ' 
for elles of the contrary wold enfue innumerable inconve- 
niencies ; wherefore fith it is fo, that the matier of the ti- 
tle and cleyme of the feid Richard Plantagenet is openly 
true, and lawful, and grounded upon evident trouth and 
juftice ; It followeth, that man (huld have rather confide- 
ration to trouth, right, and juftice in this matier, accor- 
dingly with the will of the law of God, then to any pro- 
mifle or 00th made by him to the contrarie, confidered 


viii, APPENDIX. 

namely, that by the lawe and determination of holy 
Church an ooth made by oon perfone unto the pre- 
judice or hurt of an other, contrarie to trouth, juftice, 
and charity, in the which ftandeth the plentitude and 
perfeftion of Godd's lawe, is void and of noon efFedt^ 
neither in eny wife obligatory ; And tliat the vertue and 
nature of an ooth /« to confirm trouth^ and in no wyfe to im" 
pugne it • And over that by the ooth offeaute^ homage^ or 
ligeaunce^ no man is bounden to any inconvenient or unlawfull 
thing ; And how be it that this anfwer is fufficient to 
all maner objections that may be made ayenft his cleyme 
and entent in this partie by reafon or occafion of any 
ooth, yet nathelefs the feid Richard^ for as much as the 
matier of othes is a raatier fpirituell, for more declara- 
• tion of his confcience, honefty, and trouth in this partie, 
ofFreth himfelf redy to aunfwer before eny Juge Spiri- 
tuell, competent in place, and tyme covenable, to all 
maner of men, that eny thing woll purpofe ayenft him 
in that behalf. 

And to lliew clerely, that lawfully rvithouten offence of 
God and conjcience he may cleyme and purfue his right^ and de- 
Jire Jujlice^ in Jtich fourme as he dooth^ and that all other 
perfines^ and namely the Peers and hordes of this Reame may^ 
and by the law of God and man ought to helpe, and aj/ift him 
in trouth and jufiice^ notwithfiand any ooth of feaute^ or other 
by him or thetn here before made. 
n. 15. Over this, where it is thought alfo, that it is to be cal- 
led to remembraUnce the grete and notable A&s of Parle- 
ment^ made in dy vers Parlements of dy vers of the King's 
progenitours, the which aftes been fufficient to be levyed 
ayenft the title of the feid D«c, and of more auftorit ethen 
eny Cronicle, And alfo of au6torite to defete any maner 
title made to eny perfone : 

And alfo where 'tis faid, that it is to be leyde ayenft 
the feide title dy vers entailles made to the heirs males, as 
for the Corone of Englond^ as it may appear by dy vers Cro- 
nicles and Parlements : 

The feid Richard Plantagenet aunfwereth and faith, that 
in trouth ther been noo fuch adtes and tailles made by 
eny Parlement herebefore, as it is furmyfed ; but only in 
the v'l'jthyear of King Herry the fourth a certeyne aSi and or- 
dinaunce was made in a Parlement^ by him called^ wherein he 
made the Reaumes o/Englond and traunce, amongs others^ 



h he unto him^ and to the heirs of his body comyng^ and to hU 
iiij Jonnes^ and the heires of their bodies commyng^ in maner and 
forme as it appenth in the jame aSi ; And if he myght have 
obteigned and rejoyfed the leid Corones,q^c. by title oflnhe- 
ritaunce^difcent^ orfuccejfion^ he neither neded, nor wold have 
defired, or made them to begraunted to him in fuch wife, 
as they be by the feid acte, The which taketh no place^ no- 
ther is of eny force or efeB ayenft him, that is right enheritor 
of the feid Cor ones ^ as it accordeth with G odd's larve^ and all 
natural lawes ; how it be that all other a&es and ordinaunces 
made in the feid Farlement^ and jithen been good and fuffifant 
ayenji all other perfenes. /jt.h "lo v 

Item^ Where it is thought, that if the feid Due fliuld a te, 
make any title or cleyme by the line of Sir Leonell^ he 
fhuld here the Armes of Edmund Langley late Dm of 
Tork : 

The feid Due anfwereth, and faith, that trouth is, he 
myght lawfully have borne the Armes of the feid Sir 
Leonell here bifore, and alfo the fame Armes that King 
Edward the third bare, that is to fay, the Armes of the 
Reaumes of Englond and of Fraunce^ but he abfteyned of 
beryng of the feid Armes, like as he abjieigned for the tyme 
of purpofyng^ and purfuing of his right and title^ Sec. for 
caiifes not unknowen to all this Reaume ; for though right for 
a time refi^ and bee put to fcilence^ yet it roteth not^ ner jhalt 
not perijh. 

Item^ Where it is alleged ayenft the title of the feid n. 17* 
Dmc, that the faid Herry of Derby^ at fuch tyme as he 
toke nppon him the Corone of England^ feid, that he 
entred and toke the fame Corone uppon him as right 
enheritour to King Herry the third, and not as a Con- 
querour : 

The feid Due therto faith, that fucb faying of the 
feid King Herry the fourth may in noo wife be true, and 
that the contrarie therof, which is trouth, fliall be large- 
ly ynough fhewed, approved, and juftefyed by fuffici- 
aunt audtorite, and raatier of record : And over that^ that 
his feid frying was oonly to Jhadow^ and colour fraudulently 
his feid unrightwyfe^ and ^violent ufurpation^ and by that moyen 
to abufe deceyvably the people fionding about him. 

Item, The Saturday.^ the xvij day of this prefent Par' rf; ig.' 
lement, it was (hewed unto the Lordes Spirituelx and 
Teroporelx, being in this prefent Parlement, by the 

c mouth 


riiouth of the feid Chaunceller^ that the feid Due of Tork^ 
called befily, to have hafty and Ipedy aunfwere of fuch 
matiers, as touched his title abovefeid ; And how that for 
OA moche as it k thought by all the Lordes^ that the title of the 
feid Due cannot be defeted ; and in efchewing of the grete in- 
convenients that may enfue^ a meant was found to fat'e the 
Kings honour and aftate^ and to appeafe the feid Dm if he 
vpold^ which is this; That the King fhall keep the 
Corones, and his aftate, and dignity roiall, duryng his 
lyfe, and the feid Due, and his heirs, to fuccede him in 
the fame ; Exhorting and ftering all the feid Lordes, that 
if eny of them covvde finde eny other or better meane, 
that it might be fhewed; whereuppon after fad and ripe 
communication in this matier had, it was concluded and 
agreed by all the feid hordes^ that Jith it was foo^ that the ti- 
tle of the feid Due of York cannot he defeted^ and in efchu- 
ing the grete inconvenients that myght enjite^ to take the meane 
above-reherfed^ The othes that the feid Lordes had made unto 
the Kings Highnefs at Coventre, and other places faved^ 
and their confciences therin clered : And over that it was a- 
greed by the feid Lordes, that the feid meane fliuld be 
opened and declared to the King's Highnefs : And 
forthwith they went towards the King, where he was 
in his Chambre, wifthin his Palice of Wefiminfier ; and 
in their goyng out of the Parlement-Chambre, the feid 
Chaunceller asked of the feid Lordes, that fith it was foo, 
that the feid meane fhuld be opened by his mouth to the 
King's good Grace, yfthcy wold abide by him howfo- 
ever that the King toke the matier, and all they aunfwer- 
ed and faid, Yee. 

All thefe premifles thus (hewed and opened to the 

King's Highnefs, he, infpired with the Grace of the 

Holy Gooft, and in efchuying of effufion of Chriftien 

blode, by goode and fad deliveration, and avyce had 

with all his Lordes Spirituelx and Temporelx, conde- 

fcended to acord to be made betweene him, and the feid 

D«c, and to be audorized by thaudioryte of this prefent 

Parlement : The tenour of which accord hereafter en- 

lueth in maner and forme folbwing. 

Concordia Blefled be Jefu^ in whos hand and bountie reftith, and 

Reg\m^& is the peas and unitee betwixt Princes, and the wele of, 

prsfatum every Reaume ; thurgh whos direction agreed it is, ap- 

"i. T9. pointed, and accorded as followeth ; Betwixt the mooft 


Appendix. *i 

mighty Pryncc, King Heny the Text, King of Engkrid-^ 
and of Fraunce^ and Lorde of Irehnd^ on that oon partie, 
and the right high, and mighty Prince, Richard Planta- 
genet^ Due of Tork^ on that other partie, upon certaine 
inatiers of variaunce moeved betwixt them, and in efpe- 
ciall upon the cleyme and title unto the Coroms of Eng- 
hnd^ and of Vraunce^ and roial] power, eftate, and dig- 
cite apperteigning to the fame, and Lordfliip of Ireland^ 
opened, (hewed, and declared by the feid Due afore all 
tlie Lordes Spirituelx and Temperelx, being in this pre- 
lent Parlement, T/je feid agrement^ appointment^ and accord 
to be aii^orifed by the fame Parlement. 

Firft., Where the feid Richard Due of Tork hath decla- This is the 
led, and opened as above, his feid title and cleyme m'timJkh'Z 
manere as followeth ; That the right noble, and worthy ^^""^ p« 
Prince, Herry., King of Englond., the third, had iffue, wL,'n.Ti. 
and leefully gate Edward his firft begoten Sonne, born at 
Wejiminfier^ the xv Kalends of y«j//, in the Vigill of St. 
A^arc and Mercellian.,thQ yereof our Lorde MCCXXXIX. 
and Edmund his fecund Sonne, which was borne on 
St Marcell day, the yere of our Lorde MCCXLV. 
The which Edward^ after the deth of the feid King Her^ 
rj' bis Fader, entitled and called King Edward the firft, 
had IfTue Edward his firft begotten Son, entitled and cal- 
led, after the deeefle of the feid firft Edward his fader^ 
King Edward the fecund ; which had Iflue, and leefully 
gate the right noble, and honourable Prynce, Edward the 
third, the true and undoubted King of England^ and of 
Fraunce^ and Lorde of Irelond ; which Edward the third, 
true and undoubted King of England.^ and of Fraunce^ 
and Lorde of Ireland^ had Iffue and leefully gate Edward 
his firft begoten Sonne, Prince of Wales^ William Hatfeld 
fecund begoten, Leonell third begoten Due oi Clarence ^ 
John of Gaunt fourth begoten Due of Lancafier^ Edmund 
Langley fifth goten Due of Tork^ Thomas Wodefloke fixt 
goten Due of Glouc^ and William Windfore the feventh go- 
ten ; The feid Edward Prynce of Wales.^ which dyed irt 
the lyfe of the feid Edward King, had Iftue and leefully 
gRte Richard., the which fucceeded the fame £(/tpW King, 
his Grauntfire, in roiall dignite, entitled and called King 
Richard the fecund, and dyed without Iffue. Williant 
Hatfeld., the fecund goten Sonne of the feid Edward 
King, dyed without Iffue. Leon^U. the third goteq 



Sonne of the fame Edward King, Due of Clarence^ had 
IfTue, and leefully gate Phelippe his only daughter and 
heir, which by the Sacrament of Matrimonie copied 
unto Edmund Mortymer Erie of Marches had IfTue, and 
leefully bore Roger Mortymer Erie of Marche^ his fonne 
and heire; which Roger Erie of y^arc^e had I flue, and 
leefully gate Edmund Erie of Marc he ^ Roger Mortymer^ 
Anne^ and Alianore; which Edmund^ ^^ger^ and Alianore^ 
dyed without Idue ; end the feid Anne under the Sacra- 
ment of Matrimonie copied unto Richard Erie of Cam- 
hrigge^ the fonne of the feid Edmund Langley^ the fift 
goten fonne of the feid King Edward^ as it is afore fpe^ 
cified, had Iflue, and leefully bare Richard Flantagenet^ 
commonly called Dmc of Tor^ : The feid John oi Gaunt ^ 
the fourth goten fonne of the feid King Edward^ and 
the younger Brother of the feid Leonell^ had IfTue, and 
leefully gate Henry Erie of Derby^ which incontinent, af- 
ter the time that the feid King Richard refigned the Corones 
> of the feid Reaumes, and the feid Lordfhip of Ireland^ 
unrightwifely entred upon the fame^ then beying on lyve Ed- 
mund Mortymer Erie of Marche, fonne to Roger Morty- 
mer Erie of Marche, fonne and heir of the feid Phelippe, 
daughter and heir of the feid Sir Leonell, the third fonne of 
the feid King Edward the third', to the which Edmund the 
right and title of the feid Corones and Lordjhip by lawe and 
cufiome belonged. 

To the which Richard Dm of Tork^ as fonne to Anne^ 
daughter to Roger Mortymer Erie of Marche., fonne and 
heir to the feid Phelippe., daughter and heir to the feid 
Leonell., the third goten fonne of the feid King Edward 
the third, the right, title, dignite roiall, and eftate of 
the Corones of the Reaumes of England., and of Fraunce.^ 
and of the Lordfhip and Lond of Irelond., of right., lawe^ 
and cufiume apperteigneth, and belongeth., afore eny iffue of 
the feid John of Gaunt, the fourth goten fonne of the feid 
King Edward, 
n. 20. The feid title nathelefs notwithf^anding, and without 

prejudice of the fame. The feid Richard Due of Jork., ten- 
derly dejireyng the wele., reji., and profperite of this lond., and 
to Jet apart all that., that myght be trouble to the fame^ and 
confidering the Poffejfion of the feid King Herry thejixt^ and 
that he hath for his time be named^ taken., and reputed King 
of Englond, and of Fraunce, and Lorde of Irelond ; is 



' ' 4 * 



content^ agreeth^ and confenteth^ tliat he be had, reputed, and 
taken, King of England^ and of Fraunce^ with the roiafl 
eftate, dignite, and pre-eminence belonging therto, and 
Lord of Irelond^ duryng his lyfe naturall; and for that 
time the feid Duc^ without hurt or prejudice of his feid 
right and title, (hall take, worfhip, and honour him for 
his Soveraine Lorde. 

Item^ It is accorded, appointed, and agreed, that the a 22, 
feid Richard Due of Tork rejoyfe, be entitled, called, and 
reputed, from hens forth verrey and rightfull heireto the 
Xlorones^ roiall eftate, dignite, and Lordfliip abovefeid ; 
and after the decefle of the feid King Herry^ or when he 
woll ley from him the feid Corones^ eftate, dignite, and 
Lordftiip, the feid D«r, and his heires, fhall immediate- 
ly fucceed to the feid Cor ones ^ roiall eftate, dignite, and 

Item^ For the more eftabliftiing the feid accord ; It is n. 25. 
appointed, and confented, that the Lordes Spirituelx 
and Temporelx, being in this prefent Parlement, ftiall 
make oothes to accepte, take, wurftiip, and repute the 
feid Richard Due of Tork^ and his feid heires, as above is 
reherced ; and kepe, obferve, and ftrengthen, in as much 
as apperteigneth unto them, all the things abovefeid, and 
refift to their power all them that wull prefume the con- 
trary, according to their eftates and degrees. 

The King underftanding certainly the feid title of a 27: 
the feid Richard Dm of Tor^ juft, lawful, true, and fufti- 
fant ; by thavis and aflent of the Lordes Spirituelx and 
Temporelx, and Commens in this prefent Parlement 
aftembled, and by auftorite of the fame Parlement, de- 
clareth, approveth, and ratifieth, confermeth, and ac- 
cepteth the feid title juft, good, lawfull, and true, and 
therunto yeveth his aflent, and agreement, of his free 
will and libertie. And over that, by the feid avis and 
audorite, declareth, entitleth, calleth, ftabliftieth, afferm- 
eth, and reputeth the feid Richard Due o^Tork verrey, 
true, and rightfull heire to the Corones^ roiall eftate, and 
dignite of the Reaumes of Enghfid^ and of Fraunce^ and 
of the Lordftiip of IreJond aforefeid ; and that according 
to the wurftiip and reverence, that therto belongeth, he 
be taken, accepted, and reputed, in wurfliip and reve- 
rence, by all the States of the feid Reaume of Englond^ 
and of all his Subgetts thereof, laving and ordeignrng by 

d the 


the fame audorice, the King to have the feiJ Corone^^ 
Reaumes, roiall ertate, dignite, and pre-eminence of the 
laine, and the feid Lordfliip of Irelond^ duryng his lyfe 
naturall. And ferthermore, by the fame avis and audto- 
rite, wolle, confenteth, and agreeth, that after his de- 
cefTe, or when it (hall pleafe his Highntfs to ley from 
him the feid Corones, eftate, dignite, and Lordrfiip, or 
therof cefleth ; The feid Richard Due of Tork^ and his 
heires, Qiall ymmediately fucceed him in the feid Coroms^ 
roiall eftate, dignite, and Lordfliip, and them then have 
and joy, any AB of Farlement^ Statute^ Ordynaunce^ or o- 
ther thing, to the contrarle made^ or interruption^ or dy/fcon- 
tinuance of pojfejfion notwithfionding. And moreover, by 
the feid avis and audorite, ftaWifheth, graunteth, con- 
fernuth, approveth, ratifieth, and accepteth the feid ac- 
cord, and all things therin conteyned; And thereunto 
freely and abfolutely aflenteth, and agreeth. 

From this Record it is evident, 

1 . Richard Duke of Tork exhibited his bare Claim and 
Title to the Lords only. 

1. Richard Duke of Tork did not petition the Lords, 
n. II. 

:?. His Counfel only delivered in a Writing, con- 
taining his Defcent and Title by Birthright^ and Heredi- 
tary SucceJ/ion^ and nothing elfe. 

4. The Matter was fo high, the Lords could not 
anfwer it, nor enter into Communication thereof, with- 
out the King's Command, Agreement, and Affent. 

5. The King confented, and prayed and commanded 
the Lords to fearch and find out what might be oppofed 
to the Duke's Claim and Title. 

6. They fent for the Judges, to advife what might 
be fa id againft the Duke, to fortify the King's Right. 

7. The Judges excufed themfelves, for that the Mat- 
ter was fo high, and touched the King's high Eftate, and 
Regality, which was above the Law ^ and pafTed their 
Learning ; wherefore they dare not enter into Commu- 
nication thereof. 

8. The Lords, upon this Anfwer of the Judges, fent 
for the King's Serjeants . and Attorney, and gave them 
the fame Command ; who made the fame Excufe the 
Judges had done; but the Lords would not take it: 



Whereupon the Articles and Reafons againft the Duke's 
Claim and Title were exhibited, n. \ ^. 

9. That in the Articles and Reafons againft the Duke's ThtAMhV^ 
Claim and Title, there is not the Iea(l Word of Philippas P' ^^''^• 
being illegitimate, or that her Father was divorc'd from 
her Mother ; nor is there the leall: mention, that the 
Houfe of Lancajier claimed by Prefcriprion of lixty Years 
Poffeffion, (which comes from Doleman) and the Author 
is to find out both thefe Things in the Parliament Rolls, 
or be guilty of downright Falfhood ; for he reports 
them both, as pleaded againft the Duke's Title. As to 
the firft, there needed no other Argument, if it had 
been infifted on, and could have been made good. And 
as to the fecond, neither was it infifted on, or mention'd^ 
as was fa id before ; and if it had. Nullum tempus occurrit 
Begi^ would have been a fure Rule in this Cafe: For it 
is abfurd to think, that Prefcription, at Jeaft fo fliort a 
Prefcription as this, could juftify a Wrong, and make a 
Title in this Cafe; for there is another Rule of Law, 
ISion confirmatur TraBu temporis^ quoi de jure not fubfifiit ; 
no Length of Time makes that lawful, which was not 
fo from the Beginning. If there be a Right Heir of the 
Crown, that claims, or elfe would claim, but that he 
wants either Notice of his Right and Title, or Power 
to make it good, or forbears to claim for other fufficient Viden. i& 
Reafons ; here Prefcription fignifies nothing. 

i o. It was allowed, at leaft not contradided, that all 
Verjons^ and namely the Peers and Lords^ might, and by 
the Laws of God and Man ought to help and aj/ift him in 
Truth and Juftice^ n. 1 4. 

1 1 . It was the Judgment of all the Lord?, that the 
Title of the Duke, which was only Succeffion by Birth- 
right, and Proximity of Bloody could not be defeated. 

I 2. That Richard Duke of Tork was by King Henry^ 
and the Lords, acknowledged as very and rightful Heir 
to the Crown, and that he was fo to be called. 

I ^. That the Mean found out to fave the King's 
Honour, and appeafe the Duke, if he would^ was not, 
nor could be impofed or forced upon him ; but he was 
at Liberty to accept or refufe it, and was no ways bound, 
but by his own Confent, «. i X. 

1 4. The Oath that Richard Duke of Tork took, was in 
Purfuance of the Agreement ; and any Man may lawfully 



take an Oath to make good a Bargain, where no Man re- 
ceives Injury but himfelf ; and fo with his Confent that is 
injured, any other Pcrfon concerned in the Agreement, 
may fwear to the Obfervation of it. 
^"1- 24- Laftly, The Weal^ Refi^ and Profperity of the Land^ 

(which the Author calls the Publick Good) followed this 
Agreement ; and the Reafon was, that the Crown was 
reftored to the Right Heir ; whereupon all Murmuring, 
Hatred, Strife, and Contention amongft the People, « 
and Evil-will and Contrivances againft one another, 

Ad p. 105. N u M B. 1 1 1. 

Fo/. 1^5. Regtftri Stillington B. (j^ Wells Efifcofj^ ^490. 
Certificatio Mandati Domini Archiepijcopi Cant, pro decla^^ 
ratione fy confirm. Tituli fy Matrimonij Domini nofiri 

Oil R H. Fadre the Pope Innocent VIII, tfyc. by 
his proper Motion without Procurement of our 
Sovereign Lord the King, or of any other Perfon, for 
Confervation of the Univerfal Peace, and efchewing of 
Slanders, as Ihould gendre the contrary of the fame ; 
underftanding of the long and grievous Varyances, Dif- 
fenfions, and Debates, that hath been in this Realm of 
England^ bytween the Houfe of the Dutchy of Lancaftre 
of that one Part, and the Houfe of the Dutchy of fork 
on that other Part : Willing all fuch Divifions in Time 
following to put apart : By the Counfell and Confent 
of his College of Cardinals, approveth, confirmeth, and 
ftablyQieth the Matrimony and Conjunction made by- 
tween our Sovereign Lord King Henrj VII. of the Houfe 
of Lancafire of that one Part, and the Noble PrincefTe 
Elizabeth of the Houfe of Tork of that other Part, with 
all the Ifllie lawfully born bytween the fame. And in 
lykewife his Holinefle confirmeth, ftablyfhcth, and ap- 
proveth the Right and Title of the Crown of England 
of the faid our Sovereign Lord Henry VII. and the Heirs 
of his Body lawfully begotten to him and them perteyn- 
ing, as well by reafon of his nigheft and undoubted Title 
of Succeflion, as by the Right of his moft Noble Victo- 
ry, and by Election of the Lords Spirituall and Tempo- 


rail, and other Noblys of this Realme, and by the Ad, 
Oidonnance, and Authority of Parliament made by three 
States of ^e Lond. Furthermore he approveth, con^ 
firmeth, and dcclareth, that if it pleafed God, that the 
faid Elizabeth^ the which God forbid, fhould deceafe 
without Iffue, bytween our Sovereign Lord and Her of 
their Bodies born ; that then fuch llTue as bytween him 
and her, whom after that God fhall joyn him to, fliall be 
had and born right Inheritours to the fame Crown and 
Realme of £n^/a«i. Over this, the fame our H. Fadre 
gevith his Bleffing to all Princes, Noblys, and other In- 
habitants of this Realme or outward, that aydeth and af- 
ferteth the faid our Sovereign Lord and his Heirs agenft 
his or ther Rebelis, geving to them, that dye in his and 
ther Uuarrell, full and plenary Pardon and RemilTion of 
their Sinnes. 

Numb. IV. AdM^i; 

In Lord Chief Juftice Cokes 4th Infl. c. r. of the High 
Court of Parliament is the following Ad:. 

RE X, ^c. Charijffinm Confanguineis nofim nobilibm 
'virls '^oanni M'tliti^ Henrico Clerico^ Thorns Domicelloy 
ac dileBdi nobis nobili mulkri Joann<£ Beaufort DomkeUce 
gtrmanis ^r<£ch^rij[imi avunculi nofiri Joannis Ducts Lancafiridi 
natis Ligets noftr'is falutem^ p^c Nos diHi Avunculi nofiri 
Genitoris vejiri precibm inclinati^ mbifcum qui (ut ajferitur) 
defSiu nataiium patimini^ ut hujufmodi defeBu (quern ej ufque 
qualitatis qudecunque prdtfentibus habere ijolumus pro Jufficien^ 
ter exprejfu) non obfiante^ ad quafcunque honoris dignitates 
(exceprd dignitate Regali) prd^heminentio/s^ fiatus^ gradwa^ 
(y officia publica 13^ privata^ tarn perpetua qudni temporaiia^ 
atq'Jiie feudal, ac Nobil. quibnfcunque nominibus nuncupantur^ 
etiamfi Ducatus^ Frincipai'^ Comitai^ Baronia^ ueL alia feuda 
fuerint^ etiam/i mediate^ vel immediaie^ ijel a nobis dependeant 
feu teneantur- prd^fici^ promoveri.^ eligi^ ajfumi.^ ^ admittl^ 
illaque recipere^ retimre perinde libere ^ licite ijaleatis^ ac 
ji de legitimo thoro nati exifieretis., quibufcunque ftatutis feu 
confuetudinibii^ Regni nofiri Anglia in contrarium editis feu 
obfervatis (qude hie habem:os pro taliter ezprej/is) nequaquam 
objiantibm ; de plenitudine nofir^e Regalis Fotefiatls^ ac de af- 
Jenfu Parliamenn nofiri tenor e pr^fentium d'lfpsnfjmm^ z'of- 
que (ly z'efirum quemlibet Natalibus refrituimus & legiti' 

e mamus. 

xviii 'APPENDIX. 

mamus. In cujus ret teflimonium. Tefle Kege apud W^ejim. 
Q die Feb. per ipfum Regem in Parliamento. 


Mp.173. Numb. V. 

A Letter from Qj. Jane'j Privy Council to the She^ 

riff] Sec. of Kent. 

AFTER our hearty Commendations, {yc. Where- 
as the Queen's HighnefiTe, Queen Jam.^ being pre- 
fently by juft Title in full Pojfejfion of the Imperiall 
Crown of this Realme,and other Dominions,and Preemin- 
cencies thereunto belonging ; and the Lady y^ary, Ba- 
ftard-Daughter of the late King of famous Memory, King 
Jienry VIII, doth not only by all the Waies and Means 
Ihe may, ftyrre and provoke the Common People of this 
Realme to Rebellion, but aUb feeketh Means to bring 
in great Force of Pafifts.^ Spanyards.^ and other Strangers, 
for the Aid of herunjuft and unnaturall Pretence, to the 
great Perill and Danger of the utter Subverfion of God s 
Holy Word, and of the whole State of this Realme : 
Albeit wee nothing doubte, but thefe feditious and rebel- 
lious Doeings of the laid Lady Mdvy.^ being well known 
unto you, will of themfelves admonilli you of your Du- 
ties to your, and our fliid Sovereigne Lady Queen ^jane^ 
and the Prefervaticn of the true Religion, and antient 
Liberty of your naturall Country againft Forreign Pow- 
ers ; yet confidering, what Defolation may come to Men 
cf Worfhip, and good Degree, and Wealth, by the Re- 
bellion of the bafer fort -, we have thought good to fig- 
nify unto you, that our laid Sovereign Lady Queen 
^janes Pleafure and Commandment is, that you (hall not 
only ufe all manner of Travel and Labour to keep and 
prelerveher Majefty's People, inhabiting nigh about you, 
in Peace and good Quiet, and to reprelTe all others, 
that fhall goe about to move any Tumult, either by the 
Pretence of the unjufi: and fayned Title of the Lady Ma^ 
ry, being Illegitimate and Baftard, as is aforefaid, or by 
any other means ; but aUb to put yourfelves in order, with 
fuch Numbers of Horfemen and Footmen, as you fhall 
be able to make of your Servants and Tenants, and 
others under your Rules and Offices ; fo as you may up- 
on lending for, or other knowledge given you, either 
repayre to our very good Lord, the Duke of Nonhumber^ 
landy who having with him a very good Lord the Mar- 
! quis 


<|uis of Northampton J the Erie of Huntington^ and other 
Perfonages of Eftate, is prefentJy in the Field with our 
laid Soverdgn's Power, for the Repreffion of the faid Re- 
bellyons : Or otherwife be employed for the Defence of 
the Realme, as the Cafe fhall require. By your good 
Travel) herein, you fhall not only declare yourfelves 
good and faythfuU Minifters to the Queen's Highneffe 
and your Countrey, but alfo well deferve to find her 
HighneflTe your good and gracious Lady, in any your 
realbnable Suits, and us alfo moft ready to further your 
faid Suits accordingly. Thus fare ye right heartily 

From tlie-rowreattLe.Wo« the Q^^^^ ^/^^^^^ tomnSi Frynds. 

1 2th day of Ja/jf, 1553. -w (5^7 

T. Cant. T. Ely Cane. Wynchefter, Bedford, Suf- 
fulke, Arundel, Shrewsbury, Pembroke, Ryche, 
W. Petre, W. Cecyll, J. Cheek. 

To our Loving Frynds the Sheriffe of 
Kent, the "Jujiices of Peace of the 
fame Shire^ and to every of them. 

N U W B. VI. , Ad p, 18^. 

Journal of the Houfe of Lords, ann. ult. Hen. S^'- 

Memorand. /"^ VO D die Lunde^ viz. ultimo die Jan. 
\J Anno Regni Regis Hen. 8^' ^S^'' Domi- 
nus Cancellarius.^ confidentibus univerjis magnatibus^ convocatU 
etiam^AlJlitibus^ fy" Burgenjibus d Domo communi.^ plena^ viz* 
Curia.^ declaravit mortem Domini nojiri Regis Hen. 8^', qui 
obiit die Veneris ultimo prditerito^ cujus animae propitietur 
Dem, Qu<£ res did non potefi qudm erat lu&uofa omnibus, ^ 
trijiis audita; Cancellarius verb ipfe viz potuit pr^e lachrymis ef 
fari: tandem verb fedato fletu.^ 5^ refe&is anim^ omnium re- 
cordatione Principis Edxvardi Divina indole imbuti.^ turn etiam 
le&ione bene magn<£ partis Tefiamenti di&i Domini nojiri Re- 
gis defunBi.^ id quod faBum eji publice per W" Paget militem, 
Primarium Secretarium diFti Domini Regis.^ Jc. de JiicceJJione 
in Regno, de gubernanda Repub. durante minore atate jam 
di&i Domini Principis Edwardi.^ de Jolvendis debitis.^ de pr^^ 
Jiandis promijfis.^ 'Cfc. D. Cancellarius declaravit.^ per mortem 
dicii Domini Regis dijfolutum ejfe hoc Parliamentum., 'tjc. 



Adp.2Q6. Numb. VIT. 

A Declaration of th Succefion of the Crowne* ImperiaU of 
Ingland, made by J. Hales, 1563. 

IN fo great and walghty a Matter as we have in hand, 
which concerneth the whole Realme univerfallv 
and every one of us particularly, I thinke I (hall no? 
neede to ufe any longe proheme to purchafe your Fa- 
vors to be content, or to move yow to be attentive to 
marke what (liall be fayd. For as we kw chofen of an 
inhnite Multitude to treat and do thefe things, that (hall 
be for the Benefit of the Commonweale, and be put 
in Truft for the Body of the Realme : So I truft Nature 
hath engrafted in us a defire to feeke thofe things, which 
may doe us good, and to avoyd the contrary : Wherefore 
not mindinge to ufe more Words then needs, nor fewer 
then me thinke the Greatnes of the Caufe to require I 
will diredHy proceed to the Matter. ' 

' The great and horrible Murders, and bloody Battayles 
that were betweene the Faftions of the Red Rofe and 
the White, the Howfe of Torke and Lancafter, for the 
Crowne of this Realme, by the happy M^riage of 
Kinge H the vijth^ and Queene Elizabeth his Wife, 
wereended; whereby great Quietnes and Peace (thanks 
be unto God) hath followed in this Realme, God graunt 
It may fo continew. 

This Kinge H. the vij and Queene Elizabeth had liTue 
as yow know, Kinge H. the viijth, the Lady Margaret, 
and the Lady Mary. Kinge H. the viijth had Iffue 
Kinge Edward the vjth, Queene Mary, and Queene 
Elizabeth^ the Queene's Majefty that now is. 

The Lady Margaret was firft maryed to fames K. 
of the Scotti, who had l/Tue James Kinge of Scotts, Fa- 
ther to Mary now Queene of Scotts, After his Death flie 
maryed with the Erie of Angwijh, and had Iffue by him 
the Lady Margaret, now Counteflfe of Lennox. 

The Lady Mary, the other Daughter of Kinge Hent^ 
rj/ the vijth, was M\ maryed to Lewis the French Kinge, 
and had no Ififue of him. After (he was maryed to 
Charles Duke of Sufolke, firft fecretly in Framce, and 


J P P E N b I X. xxi 

afterward openly in England. The Duke and She had 
IflTue the Lady FrauncU^ and the Lady Elianor. 

The Lady Frauncis beinge eldeft, was maryed to the 
Marques Dorcet^ by whom (he had Iffue the Lady Ca- 
therine^ and the Lady Mary. 

The Lady EUanor was maryed to the Erie of Comber^ 
landiy and had Iflue the Lady Margaret^ now Wife to 
the L. Straunge. 

By the Statutes of Kinge Hmery the viij, a8 and :?5. 
the Crowne was intayled (as you know) for lacke of IfiTue stat. 28 h. 
of Kinge Edward to Q. Mary^ and to the Q. Majefty S-*35H.8. 
that now is ; and for lacke of Iflue of their two Bodyes, 
to fuch Perfon and Perfons in remaynder, as fliold pleale 
Kinge Henery the viij, and accordinge to fuch Eftate, 
and after fuch Manner, Forme, Facion and Condition, as 
{hold be exprcfled, declared, named, and lymited in his 
Highnes Letter Patents, or by his laft Will in Writinge, 
figned with his Grace's hand. 

For the Eftablifhment of which Succeffion we the Sub- 
je6^s of this Realme, befides our Promife by that Ad de- 
clared, were alio fworne by Othe, that we fhold be obe- 
dient to fuch as Kinge B^ accordinge to the fayd Ffta- 
tutes, (hold appoynt to fuccede the Crowne, and not to 
any other within this Realme, nor to any forreyne Auc- 
thority. Power, or Potentate ; which Words do print 
well in your Myndes (I befeech yow.) Whereupon the 
fayd Kinge H. made his Will accordingly, in which he 
put the Heyres of the Lady Frauncis firft, and next the 
Lady Elianor in remaynder. 

Others fay, he caufed a Will to be made, which was 
not accordinge to the Statute ; for that it was not figned 
with his Hand. Some fay he made no Will at all. 

The Queftion groweth, whether the Heyres of the 
Scottifh Queene, or the Heyres of tfae Lady Frauncis and 
Elianor be next Inheritors to the Crowne; if it fhold 
pleafe God to take from us the Queene's Majefly with- 
out Heyres of her Body, or whether any of them be in- 
heritable ; whereunto I declare my Minde and Judge- 

Firft .^ The Legacy es and Beqiiefts^ that Kinge H. 
made to diverfe both of Lands and Monny, declare that 
he made a Will ; for all Were performed and fatisfyed, 
1 am enformed. 

f Alfo 


k\(o after his Deceafe, diverfe Indentures tripartite 
were made betweene King Edward and the Executors of 
Kinge H. his Will, and others ; and diverfe Purchafes 
and Patents pafifed under the Great Seale of Ingland^ ia 
confideration of the AccompHfhment and Performance 
of Kinge K his Will. 

Thirdly^ Ther was a Will in the Name of K. Henery 
enrolled in the Cbauncery^ and diverfe Conftats therof 
made under the Great Seale, in which Will the Remayn- 
der of the Crowne was in the Heyres of the Lady Frauti' 
cis firft, and afterwards in the L. Elianor, 

Finally^ Ther was a Claufe in the fame Will, that 
all other Wills made at any other Time, were Voyd 
and of none EfFe6t ; which needed not, if there had 
been none other Will; and that figned with his Hand. 

All which be evident Arguments, that Kinge R dy- 
ed not Inteftat, but that li^ made a Will ; and that it 
was the fame Will, that was enrolled in the Chaumery ; 
for it is not to be thought, tliat fuch Enrollement was 
done in vayne. 

If the Will were made accordinge to the Statute; then 
k is without all doubt, that as we be bound, and have 
taken them for Kings and Queens by Name, that be ex- 
preffed in the fayd Statuts, fo we be bound to accept 
them, that be declared by the Will in Remaynder or Re- 
vercion ; That is, the Heyres of the Lady Frauncis^ and 
the Lady Elianor ; for they be expreflfed in the Will, 
and ought to have it by the like Audhoritye and Title, 
as other expreflfed in the Statute ; bycaufe it was in like 
manner done with the Confent of the whole Realme 
confirmed by Othes, which being not contrary to God's 
Lawes, nor the Law of Nature, and beinge in our 
Powers to obferve and keepe, we ought not in any 
wife to alter or breafce ; for we know the Judgments of 
the Lord is certayne. That he will not hold him guihles that 
taketh his Name in 'vayne : And fo the A6t and Will is a 
Barre and Exclufion to all others, be they never fo 
nearofBloud, if any there be. 

But fome fay, it is no Will made accordinge to the 
Statute; bycaufe it is not figned with the King's Hand, 
fay they. 

I pray yow confider well the Matter : If it (hold 
now be doubted, whether it was his Hand ; and that 



none (hold be interpreted his Hand, but that was written' 
with his owne Fingers ; you (hold admitt fome of the 
Parlayments made by Kinge H, the Eyght ; for the Sta- 
tute made A° xxxiij° of Kinge H. viijth, ca. xj° , Srat. jjtt.t; 
faythe, that the King's Royal Aflent with his Letters '^^' '**'* 
Patents under his Great Seal, and figned with his 
Hand, and declared in the higher Houfe to the Lords 
and Commons, is of fuch Force, as if he were prefect; 
accordinge to which A6t diverfe AiTents at Parlayments 
were made, and in fome of them fome wtre attaynted 
of Treafon, and fufFered. Now if we fhold doubt, whe- 
ther it were his Hand or not, we mought perchaunce 
bringe fuch things in doubt, as we would not gladly 
come in doubt of; for we fhould put whole Parlay* 
ments in doubt. . . 

But it may be fayd, fith by thefe Statutes that Powet 
was given to King H. that he might make his Will of 
the Crowne, which otherwife by Law he cold not doe ; 
Reafon it is, he follow the Law prefcribed ; if he hath 
not done it, then it is voyd in Law; hyauk forma dat 
ejfe ret. 

To this I aunfwer, that albeit it was not figned with 
his Hand, yet is it not a fufficient Caufe, that we fhold 
reject it ; for if the Forme be £o neceffary to be obfer> 
ved • why, I befeech yow, do yoii allow Queene Maryi^ 
Parlayments, that were called by Writts, without the 
Addition of the Stile and Title of the Supreeme Head 
of the Church of England^ Sec. when there was a fpe- 
ciall Statute, and of the greateft Importaunce, before 
made of purpofe to declare, that the Bilhop of Rome 
had no Authority within thisRealme; and chiefly up- 
on this Caufe, for that Kinge H. feinge his Daughter 
Marye^ Stubbornes and MaHce to his Doings, and fond 
Devotion to the Pope, ment, that if fhefliold at any 
Time come to the Place, (he fhold not, if (he wold, 
undoe that he had done. And if yow will fay, thefe 
Words of Supremacy needs not, albeit there were fuch 
a Statute ; much lefTe fay I, thefe Words (with his 
Hand) need in this Cafe : For if you mark well the • 
Conlideration, why this Authority was given to Kinge 
Henery the viijth, for the Eftablifhment of the Succeflion ; 
yow fhall find, it was to no other Ende, then the Statute 
of Kinge H. viijth in xxviij° declareth ; that is, that Sm. 28rf.i 



after his Life the Realme (hold not be deftitute of a law- 
full Governour, which ye fee in this Will in this Part 
is fully performed; for by his Will he hath put firfi: in 
Remaynder theyres of the Lady Framds^ and then the 
Lady Elianor ; which beinge next of his Blood and 
Kinne, and fuch as he loved, and had no caufe to hate, 
Nature did move, and Reafon did teach, to preferre 
above all other. 

Theyres of the Scottijh Qucene (ye know) he had no 
caufe to love ; for Kinge James^ when he had promifed 
to meete him at IfoYke^ mocked him ; and afterwards 
made Warre agaynft him. And when the Lords of 
Scotland ( after Kinge James his Death ) had promifed 
him the Mariadge of their Queene, they deceyved him, 
and maryed her to the Erie of Angwijhe ; which was 
not only without his Confent, but alfo unorderly and 
-unlawfully done (as it is fayd.) And for the Words in 
the Statute ( the Will h he Jigned with his Hand) is not of 
neceffity ; for that it was ment for the Succeffion ; for 
he might have appoynted a SuccefTor certayne without 
his Hand'Writinge ; but for the more fuerty, there (liold 
be no counterfeyted Will in his Name, which cannot be 
prefuppofed of this Will, when thefe be named in Re- 
maynder, which of Nature and Right ought to be pre- 
ferred therunto. Shall we then with cavelinge Words 
fubvert the State, when by the true Meaninge of the Sta- 
tute, and without Injury to any, we may prefer ve our 
Country in Safety ? Surely in my Judgement ther is no 
Reafon, Equity, or Confcience, that can lead us fo to 
doe : But, fay they, it is not his Will figned with his 
Hand as the Statute requireth. How prove they that ? 
Eyther it muft be difproved by a fufficient Number of 
Witnefles, fuch as I take, bothe the Law Civill and Ca- 
non doth allow ; for by what Law it was made, by that 
Law it muft' needs be difproved : Or elfe by compa- 
ringe the Hand arid Signe, the Particle is figned, with 
other Writings that were figned with his own Hand ; 
But fuch Conferrence cannot be, bycaufe the Original 
cannot be found : And to fay the very truethe, after 
the Will was once proved and allowed, (which I take to 
be fufficiently done) when it was enrolled in the Cham- 
ceryj and publifhed under the Great Scale of hgland^ 
by Kinge Edward the vith, being the Supreme Head in 


A P P E N D T X 

Earth of the Church of Ingland^ and lb a fufficicnt Or- 
dinary, the Particle needed not; for the Record wa5of 
more Strenght. 

But, fay they, there can be no fuch Record found irt 
the Chauncery. Whether there be any fuch Record re^ 
inayninge therof, or not, I know not; but fure I am, 
there was a Record thereof, and diverfe Conftats made of 
it under the Great Scale of Inghni^ for every of th6 
Executors, and alfo for fome otheirs. 

But I pray yow tell me, is it Reafon, bycaufe the Ori- 
ginal), nor any Recor^ therof appearethe, the Right of 
thofe that be in Remaynder (hold be loft? Do Men loofe 
their Inheriraunce, if by Chaunce of Fire or otherwifd 
their Evidence be loft? Add did Sir Richard SackviU^ 
Sir John M^ifin^ Sir Henery Nevell^ or they res of Sir PhiU 
lip Hobby^ lofe the Right to the Biftiop of W'inchefters 
Lands, bycaufe the Record th4^eof was deftroyed ? I 
trow yow will deny it ; bycaufe the laft Parlayment yo\v 
did orderly reftore them. And albeit there be no Re- 
cord of K. Henery his Will ; yet there is no doubt, but 
fome of the Conftats doe remayne, and alfo Coppyes 
therof: And the Memory therof is To frefti, that albeit 
all the Conftats and Coppyes were deftroyed, yet therd 
be Men, that do remember, that there was fuch a Will, 
and that the Remainder was declared to be in the Heyres 
of the Lady Frauncis^ and the Lady Elianor. 

But let us confider (I befeech yowj at what Time, 
and to what Purpofe, and End, the Record of the Will 
was defaced and deftroyed : It was done in Queene Ma- 
rye'sTime fas the common Report goeth) and it muft 
needs be prefumed, that fuch wife and learned Men, as 
then bare the Sway of the Realme, wold not doe it for 

Was it bycaufe Queene Mary wold not fatisfy the 
Bequefts and Legacyes therein mencioned ? That cannot 
be ; for all were largely payd and performed before her 
Time to the uttermoft. Was it then bycaufe they wold 
not have the Maftes and Obytes therin exprefTed conti- 
nued ? That cannot be thought, when Ihe and thole 
that did it, did put their chief TrUft of Salvation in 
Maftes and Obytes. 

Was it bycaufe they tendered Kinge H. his Honour^ 
that they wold not have it appeare, that his Will after 

g Jii5 



his Death, and his Doings in his Life-titne, were con- 
 trary ? How cold that be, when they labored by all the 
Wayes they cold, to undoe that which he had done; to 
deface and difhonor him in all Things; and as fome 
thinke^ burnt alio his Bones ? 

Was it bycaule there was any thinge in the Will, 
which might authorize the Executors to withftand in any 
thinge Queene Maryes Affections ? None were fo ply* 
able to her Devotions as the Executors, and they that 
were named in the Will : Was itbycaufe they wold barre 
the Queene's Majefty that now is of the Crowne ? That 
cold not be ; for Ihe claymethe k, not by Will, but by 

Seinge then that none of thefe Caufes, that I have 
told, ferved to maintayne their Doinges, for the Deftru- 
ftion of this Will; and that both the Originall, and the 
Record of the Will be|deftroyed ; it muft of Neceflity 
be concluded, that it was done onely, for that they 
knew the Will to be lawfull, and faw no other way to 
deprive the Heyres of the Lady Fraunc'is of their Right 
to the Crowne ; otherwife they had no Caufe to conceale 
it ; which Imagination of them, eftccminge themfelves 
fo wife and fo learned, fhall be deadly. 

Confideringe that Will. Sommer ufed not in his Madnefs 
to doe any thinge, but he wold render a Reafon or Color 
for it, wrong or right : And fome fo erneftly labored 
agaynft the I^w and theyr Othes to diflblve the A6fc of 
Succeffion, that if they had knowen any Man, that cold 
juftly have preferred their Purpofe, and fayd, it was a 
Counterfayt Will, they wold have made him to doc it by 
Hooke or Crooke, eyther for Hope of Reward, or for 
Feare of Torture. 

Wold not they (thinke yow) have done it by fome 
Color of Law, or by Examination of Witnefles ? Shold 
it not have beene publiflied in the Starre-Chamber, 
preached at 'Poule'-, CrolTe, declared by A£t of Parlay- 
raent, and proclaymed in every Quarter of the Realme ? 
Yes, doubtlefs : Nothinge fhold have been omitted, 
that cold poffibly have beene devifed, whereby fo mani- 
feft an Untruthe, fo muche of their Commoditye, might 
appear; butbycaufe they faw, they cold not do it juft- 
ly, nor handle the matter fo craftily, but that every 
Man wold perceyve theyr Doinges, and in fome difcloie 


A P P E N D 1 X. xxvi; 

theyr JugHns ; therefore by like, like poHticke Men^ 
they tooke an unorderly Meane, and dertroyed the whole 
Record; thinkinge therby no VVitnes cold be found, 
and fo no Truthe appeare: But is not this, trow yow, a 
very ftraunge thinge ? 

What if it be fayd otherwife; either it mufl: be his 
Will figned with his Hand, or els it is no Will at all. It 
will be as eafy to prove the one, as deny the other; for 
• it cannot be but a Will ; for there be xi Witneflfes, Meri 
very honeft and fubftanciall, that with the Subfcription 
of their Names do teftify the fume ; and upon that the 
Executors proved the Will, tooke upon them the Admi- 
niftration, and have in every Point fulfilled it. Surely 
it cannot be denyed, but that the Witnefies were very 
honefl: Men, fubdanciall and worthy to be credy ted. 

But the felfe fame Witneflfes that fay it was a Will^ 
affirme in like manner, that it was figned with his owne 
Hand : For the Words of the Will be thefe; In Wit- 
nefs whereof we ham Jigned it with our drvne Hand^ iri 
our Pallayce at Weftminfter, the third Day of December, 
&c. beinge prejent and called to be Witneffes thefe Ferfons^ 
that haue written their Names hereunder^ Jon. Gats, ^c. So 
as I can learne no Remedy, but eyther bothe muft be 
graunted, or bothe denyed ; that is, eyther it is no Will, 
or els it was figned with his owne Hand. 

Agaynft any of thefe Tefl:imonyes can none of thefe 
Witneffes come, except they will difcredit themfelves ; 
and if any of the Executors goe about to impugne this 
Foundation and Teftimony of the Witneffes ; then fliall 
he not onely defl:roy his chiefe Buildinge; butalfo fay 
now agaynft that he hath before moft manifeftly confef- 
fed, when he allowed it, and proved it to be enrolled, 
and put forthe under the Great Scale ; and fo with his 
Doublenes (hall make himfelfe no meete Witnes. 

Befids thefe two Kinds of Witneffes I cannot imagyne 
any ; for fome of the Executors, and thofe xi Witneffes 
were fuche, as were continually waytinge on the King's 
Perfon. If any other will com.e forth, and fay it was 
not his Hand, it is to be confidered, how many, and 
what they be ; not one or two will ferve thePurpofe, but 
there muft be many, and thofe omni exceptione majores. Yf 
they were privy or confentinge to thembezellinge of the 
Particle, or Deftru6tion of the Record, the Law will 


xxviii APPENDIX. 

not admitt them for Witneffes ; for it accountethe them 
inter falfarios^ and fo mfames. But fith in this Will, 
which is called Kinge H. his Will, there is this Claufe, 
That all other Wilh^ made at any other time^Jhold be wyi ; it 
appearethe he had other Wills. If any Man will deny 
it, not onely the Words of the Will (which otherwife 
fholdbeinvayne) will playnely reprove him; but alfo 
there be yet livinge, that Iiave feene the fame, and how ^ 
that fome of them were interlyned by Kinge H. and' 
fome of them in all, or for the moft part, written witli 
his owne Hand. 

But perhaps it will be doubted, whether there were 
any fuche Succeffion limyted or fet forthe in his Will ; 
which methinks ought not ; for it will appere by mani- 
feft Prefumption. Firft it is not to be doubted, fith 
Kinge H. fo long time before (like a prudent Prince) 
forfaw the great Daunger, that the Realme might fall 
in, for the Uncertaynty of the Succeffion ; and that 
he had procured Authority and Power by Parlayment 
to eftabliih it ; and that mindinge in his Dayes perfonal- 
ly to invade Fraunce ; but that like a Father of his Coun- 
 try, with good Advifement and Deliberation he made 
his W^ill, and eftablifhcd the Succeffion. 

Secondly^ It muft needs be, that in that Will, ^o made 
before his goinge over, the Limitation of Succeffion was 
• m fuch Manner and Forme, as is declared in his laft 
Will : For, as 1 fayd before, there was no Caufe, that 
he (hold beare any Affedlion to the ScottiJI^e Queene, nor 
yet to the Lady Lennox ; and havinge no Caufe to be 
offended with his Sifter the French Queene, nor her Chil- 
dren ; that is to be judged, that he wold not leave it 
to any other before them, or not provide, it might come 
to them fpecially, when he had none other Kinsfolke of 
his owne Blood to leave it unto. 

Thirdly^ This Laft Will can be no new Will devifed 
and made in his Sicknes, but the Coppy of his former 
Will ; for if it had bene a new Will, then devifed, who 
cold thinke, that eyther himfelfe wold, or that any durft 
to have moved him to have put therin fo many things 
contrary to his Honor ? And (ith it feemethe to be be- 
fore written of his owne Devife, and no Man durft move 
him to alter it in thofe Poynts, that were agaynft his 
Honor, muche leffe durft they themfelves devife any new 



feuccefliorl, or move hirh to alter it othcrwife, tlien thty 
found it, where they faw, it cold be none otherwife na- 
turally difpofed ; And therefore if it cold be fully pro- 
ved, that his Will, which was called Kinge H. his Wiljj 
was not figned with his owne Hand (as it will be a very 
hard matter to prove negathum FaSium) yet can it not be 
denyed, but fome of thother Wills, out of the which this 
Will was copyed, was written and figned with his owne 
^ Hand, or at the leaft enterlyned, which may be fayd a 
fufficient Signinge with his owne Hand • albeit perhaps 
the very Originall can not be brought forthe. 

Sith then it appeareth, that Kinge H. made a Will ; 
fith it appearethe by the Teftimony and Subfcription of 
tlie xj WitnelTes, that it was figned with his owne Hand ; 
fith it was fo pr<£ferred by the Executors ; fith it was as 
his Will enrolled in the Chauncery^ and publifhcd under 
the Great Scale of tngland^ wherein it was written, that 
it was figned with his owne Hand ; fith the Particle, and; 
the Record therofbe without Order deftroyed, and all 
the other Wills burnt ; and fith there can come forth no 
fuche Witnefs to difprove it, as the Law admitteth^ 
methinketh there is no Reafon nor Color to move us to 
thinke, that this was not Kinge H. his Will, made ac- 
Gordinge to the Statute ; nor yet that Men (hold thinke, 
that he made no Will j but rather to pronounce and 
confefle, that he made a Will accordinge to the Statute ; 
and that which was called his Will, is the very true and 
right Will ; and that by the Statutes, and by our Othes 
we are bound to receave them for Kings and Queenes of 
this Realme, if it (hold pleafe God to take the Queene's 
Majeftie from us without IfTue. 

But lett us admit an Untruth, that there was no Will ; 
to the Ende there may be nothinge imagined, that can- 
not juftly be aunfwered ; and that the Truethe (which 
for my parte 1 only defire) may appeare to all Men : 
Who then is right Heyre to the Crowne? It will be 
fayd, the Scottijhe Queue ; bycaufe fhe comethe of the 
eldeft Sifter, and is next of Blood to Kinge H. the viijth, 
accordinge to the Maxime of the Law. 

True it i=, there is fuch a Maxime in the Law ; but 
it may not fo largely be taken ; for it muft be reftrayned 
to .fuch, as be inheritable by the Laws of this Realme, 
which be borne within the King's Allegkunce : For if 

h yow 


A P P E N D I X. 

yoW will put Straungers ^nd right Englijhe Men in one 
Cafe ; What avayleth the Liberty of Ingknd ? What 
profitethe it to be an Englijhe Man borne ? For Straun- 
gers have not fo great a Commodity in Inghnd in all 
things, as Inglijh Men have ; for they be not onely not 
bound to ferve the Realme, with their Witts ; to 
mayntayne that With their Goods, and deffend it u^ith 
their Bodyes and Blood as we be ; but alfo they may 
come when they will ; tarry as long as them liftethe ; » 
and depart when it pleafethe them : Wherefore by Na- 
ture there ought to be great Difference betweene £«g- 
//j^e Men and Straungers; and that thofe onely (hold 
enjoy the Sweete, that be bound to taft the Sower : And 
fo our Lawes have provided, if we will fuffer them to 
28 E. 3. ftand in Force: For the Statute of xxviij° E. Tertij, 
expoundinge the Law in this Cafe, fayeth, That the 
King's Children, wherfoever they be borne, ey ther with- 
in the Realme or without, be inheritable to their Aun- 
ceftors : And that all others, which from that Time 
fhall be borne out of the King's Allegyaunce, whofe Fa- 
thers and Mothers at the Time of their Birthe be in the 
Faythe and Allegiaunce of the Kinge of Inghnd^ fliold 
be in like manner inheritable to their Aunceftors ; wher- 
by a Confequent may be gathered, {a contrario fmfu) 
thofe that be borne of Father and Mother, that be not 
in the Faythe and Allegyaunce of the Kinge of Ingland^' 
be not inheritable within this Realme. And fo it ap- 
pearethe ( BraBon ) that the Law before was ; for he 
fayeth in the Title of Exceptions thus. Sicut AngUcm 
non auditur imphcitando aliquem pro terns ^ tenementis in 
Francia : Ita non debent alienigena ^ Francigena^ qui funt ad 
fidem regis Francide^ audiri placitando in Anglia : And in 
another place, Lib. iiij°- De exceptione dilatpria : Bra^ 
&on fayeth thus ; Item^ Refponderi^ quod particeps^ de quo 
dicitur^ nil capere potefi^ quia eji ad fidem Regis Francf^^ ^ 
idea nil capere potefi^ antequam fiati And Littleton fayeth, 
as yow know, that in Adions Reall and Perfonall, by 
one borne out of the King's Allegyaunce, it is a good 
Plea for the Defendaunt to fay, that the Playntife was 
borne out of the King's Allegyaunce. 

But fome fay, that Scotland is a Member of the Crowne 
6f Ingland^ and therefore the People therin borne be in 
Allegiaunce of the Kinge of Ingland. Although Scot* 


A P P E k b I X. 

land of Right belongeth to the Crowne of Ingland; yet 
is it not a fufficient Caufe, that the People borne in 
Scotland be in the Kinge of Ingland^ Allegyaunce. It 
cannot be denyed, but that Normandy of Right belong- 
eth to the Crowne oi England; yet it fotloweth not ther- 
fore, that the Normans be in Allegiaunce of the Crowne 
and Kings of Ingland. No; albeit that Norman ly be- 
longeth to the Crowne of England ; yet bycaufe the Peo- 
> pie there did decline from their Faith and Allegyaunce, 
that they ought to the Kinge of Ingland^ and became 
fubjedl, and gave their Faith and Allegiaunce to the 
French Kinge ; their Lands were efcheted, as appearethe 
by the Statute of Prderogativa Regis^ cap. xij°- So in like 
manner, albeit Scotland belongeth of Right to the Crowne 
of Ingland ; and that the King of Scotland have oft-times 
done their Homage therefore to the Kings of Ingland ; 
yet we fay, they have longe time forfaken their Faithe 
and Alleigaunce of Ingland^ and have become Rebells, 
but rather have beene taken for Enemyes to Ingland ; 
for they have ufually ranfomed upon their Taking, as 
Enemyes, and not been executed with Deathe, like Re> 
bells. And by that meanes Kinge Jemy^ Father to their 
Queene that now is, was at the Time of her Birthe, and 
of his Deathe, out of the Faythe and Allegiaunce of 
Ingland. Wherfore to fay, that the was borne within 
the King's Allegiaunce, becaufe fhe was borne in Scot- 
land^ is a mere Cavillation, fecundum non caufam ut cau-^ 
fam^ more worthy to be laughed at, then to require any 
Aunfvvere at all. 

Now let us compare thefe things toglther: Yoii 
know, that the Scottijhe Quene is not the Kinge of Ing- 
land'*?, Child; nor was borne in the Kinge of Ingland's 
Alleigaunce; nor yet come of Father and Mother in the 
Faythe and Alleigaunce of the Kinge of Ingland ; nor is 
a Free- Woman in Ingland : Wherefore by the Lawes 
of Ingland fhe can not inherite in this Realme. And 
if yow defire a Praefident and Example for the very 
fame Caufe, that we now intreat of; yow may find it 
in the Chronicles, how Margaret the Daughter and 
Heyre of Edward the outlawed, Sonne and Heyre of 
Ed. Iron/iJe Kinge of Ingland.^ maryed to Malcohn Kinge 
of Scott f^ nor any of her Children never made any 
Clay me to the Crowne of Ingland; but bothe herHul- 



xxxii A P P END IX. 

band, and her three Children after him, and their Iffue'^ 
beinge Kings of Scotland^ did Homage to the Kinge of 

But it will be fayd, that Kinge H the Second was 
borne out of the King's Allegiaunce, his Father was no 
Denifon, and yet he inherited the Crowne. 

True it is, that he was borne out of the King's Allei- 
giaunce : But whether he was made Free or not, that 
is uncertayne : Albeit it is to be fuppofed, that his 
Grandfather mindinge, that he fbold fuccede him, omit- 
ted nothing that fhold ferve for that Purpofe. 

But this may we know by our Chronicles, that he 
came in rather by Eleftion, and Confent of the Realme^ 
then by Inheritaunce : For Kinge H. the Firft procu- 
red, that the Clergy and Nobility fbold be twife fworne 
to the SuccefiGon of Maud the Empreffe, his Daughter, 
and her Heyres ; and for breakinge that Othe, and re- 
ceavinge Kinge Stephati^ the Hiftory (heweth, that the 
Realme was marvayioulJy plagued, and efpecially the 
Clergy and Nobility ; and that 'by K'mgQ Stephan him- 
felf : And befids, if we will wayghe the Matter indif- 
ferently, we may truly fay, that Kinge Henry the Se- 
cond enjoyed the Crowne by Inheritaunce lawfully : 
For albeit, that Maud were not Queene of Ingland de 
¥aEio^ yet (he was de Jure. For Stephan was but an Ufur- 
per. And fo Kinge H. the Second was the Queene's 
Child, which yow fee by the Statute of £. 3. is free, 
wherfoever they be borne. 

And other Objedion there is of Richard the Second, 
how he was borne at Burdeauz out of the Realme, and 
yet was Kinge. To that I aunfwere, he had it juftly ; 
k)V he was borne of Father and Mother Inglijhe^ in the 
King's Alleigaunce, which is fufficient, and alfofor Ad- 
vauntage ; for Burdeauz was then in the Fayth and Al- 
leigiaunce of the Kinge of Ingland. 

Thus I take it very playne, that the Scottijhe Queene 
can make juftly, by the Lawes of Ingland.^ no Clayme to 
the Crowne. Wherefore ? bycaufe flie hath no Right in 
Law, nor Reafon. 

And therefore now we will proceed to the Examina- 
tion of the Title of the Lady Lennox ; whom perchaunce 
, fome will thinke to have the next Right j bycaufe (lie 


APPENDIX. xxxiii 

was Daugiiter of the Lady Margaret^ the eldefl: Sifter of 
Kinge K the viijth. 

True it is, (he was her Daughter : Bat her Father^ 
the Erie of Angwijhe^ was a Scott^ an Alyen, and no 

But it will be fayd ; it maketh no matter, what her 
Father was, fo that (he was borne in Ingland (as it can- 
not be denyed (he was ;) for, as fome lay, the Law of 
Inland doth allow every Ferfone to be Ingli//;e^ that was 
borne in Inglandy of what Nature foever his Parents be, 
i^ they were only ad fidem Regis Angliie ; that is, fworne 
to be true to the Kinge of Ingland^ and his Subjed"s, as 
the Rafle of Angwijhe^ at the Birth of the Lady Lennox 
his Daughter, was not. 

Perchaiince it might make fomewhat to the Purpofe, 
in the Opinion of the Common People ; albeit in very 
Deed^ and by the Lawes of the Realme it feemeth no- 
thing at all : For it appeareth in the 14 E. iij, and 14. 
H. vj, that albeit an Alien be fworne to be true to the 
Kinge and the Realme in any Lete of Succeflion, yet 
is he not abled therby to purchafe Land ; but muft be 
enabled therunto expre(rely by the King's Letter Pa- 
tents. _ _ . . 

But that the Child (hold inherite, and the Father not 
free in IngJand^ it cannot but feeme very ftraunge, how 
any "fuch Opinion (hold be conceaved of any Man learn- 
ed ; for it diifeteth from the Lawes and Poll icy es of all 
other Places. The Law fayeth^ Sequitur Patrem ; that is 
to fay, the Child (hall be accompted of that Nation, 
where his Father was borne. If the Father be French^ . 
wherfoever the Child be borne, it (hall be accompted 
French ; if the Father be an Italian^ the Child muft be an 
Italian; if the Father be Duche^ the Child (hall be 
Buche ; except his Father have forfaken his owne Na- 
tive Country ; and hath not onely given his Fayth to an- 
other Prince of Eftate, but alfo is admitted to be a Ci- 
tyzen, or Freeman there. 

And the Reafon feemeth to be this ; that fith Man is 
naturally difpofed to live in fome Socyety, (and indeede 
muft needs fo live^ if he will be like to Man, and not 
wander Abroad like a Beaft) he muft joinn himfelfe to ^ 
fome Society or Congregation, wherin as he delireth to 
enjoy the Benelits that grow of fuch civil Society ; fo it 

i is 

xxxiv APPENDIX. 

is meete and reafonable, that he (hold be Partaker of the 
Burdens, and faithfully to maintayne that Society and 
defend it, by which he himfelfe is praffcrved and main- 
tayned. And bycaufe God firft made Man, and of Man 
Woman ; and hath alfo made him a more apter Inftru- 
ment to ferve in the Common Weale, in the Functions 
both of Body and Mind ; therefore is Man praeferred be^ 
fore the Woman, and thought the more worthy Perfon, 
iK)t only by the Lawes of Nature, but alfo by all other 
Lawes, and alfo by the Lawes of this Realme, as ap* 

• peareth 7 £. ij. And fo the Children in all other Places 
follow the Condition and Eftate of their Fathers, as the 
more worthy Perfon ; which they do alfo here in Eng^ 
land', for the Law in like manner fayethe, partus fequitur 
Patrem ; which if it (hold be expounded onely in Cafes 
of the Bondman and his Wife, and that the Child fliold 
be Bond or Free, accordinge to the Condition of the Fa- 
ther ; then is it no Maxime, as the Law termeth it ; for 
a Maxime is a Rule, that ferveth to rule and decife more 
Matters and Cafes then one. 

But let us feeke, if we can find any Reafon to main- 
tayne this our Opinion, That every Perfon borne in Ing- 
land^ of what Nation foever the Parents be, Ihall be 
free ; for Pofitive Law written ther is none to maintayne 
it; except yow will take for Pofitive Law written, that 
which is conteyned in the Booke of the Expofition of 

, the Formes of the Lawes of Inglani^ which of what 

Aufthoritye it is, I know not. But what fayeth the 

Booke? Veryly thus: Yf an Alien come and dwell in 

- Inghnd^ beinge none of the King's Enemyes, and there 

hath IfTue, this IfTue is not Alien, but Inglijhe. 

But no fuch Alien was the Erie of Angwijhe; for, as 

" the Chronicle witnefleth, he cam not into Ingland^ with 
a mind to tarry and inhabite here, but after he had ma- 
ryed the Scottijhe Queene, both without Kinge H. her 
Brother's Aflent, and alfo agaynft the whole Counfayle 
of Scotland^ there fell fuch a Varyaunce betweene them 
and the Lords of Scotland^ that (he and the Earle, like 
bani(hed Perfons, fled into Ingland^ and wrote unto the 
Kinge for Mercy and Comfort in his great Di(tres. The 
J Kinge enclined to Mercy, fent them Apparell, and all 
other Things necelTary, willinge them to lye (till in Nor- 
thumberlandy^iW they knew further of his Pleafure. 



"Wherupon they continued and kept at Barhottell^ where 
fhe was delivered of the fayd Lady Lennox , and after 
Kinge H. fent for her, and her Husband the Earle, to 
come to the Court, which they promiCed (o to doe: 
But fecretly the layd Earle of Angwijhe fled backe into 
Scotland^ (belike to his other Wife, as yow ihall hereafcei^ 
heare) miftruftinge, lefl: the Kinge had had Underftand- 
inge, how he had diftayned and abufed his Sifter, and 
fo (he came without the Earle to the Court. Now when 
Kinge H. had hard, that the Earle of Angwifhe was fo 
departed, he beinge greatly therwith difpleafed, fayd it 
was done like a Scott ; and fo, after that the Queene had 
taryed one whole Yeare in Ingland^ fhe retorned into Scot- 
land ; wherby it may ^ppeare, that the fayd Earle of 
Angwijhe is not of that Sort of Aliens, that the fayd 
Booke of the Expofition of the Termes of the Lawes of 
Ingland fpeaketh of; for he cam not into Ingland to dwell^ 
nor had any Dwellinge place there ; but rather was to 
be adjudged a Gueft ; or as a Bird that leaveth for a time 
her native Country, while the fowle Weather lafteth ; 
or as a wild Beaft, that is chafed with Hounds out of his 
Haunt, and flyeth till he perceave they perfecute him no 
longer. And lb the Lady Lennox can clay me no Benefitt 
at all by this Law, (if it be taken for a Law) but rather 
it maketh alltogether agaynft her. Moreover, Statute 
ther is none to mayntayne this Opinion, that fayeth, eve- 
ry Perfon is Inglijhe, that is borne in Ingland^ of whatfo- 
ever Nation his Parents be. Then of Neceflity it muft 
be by Cuftome, if it be not by Law, which having no 
Reafon to mayntayne it ; or if it be contrary to Reafon^ 
it is no Law^ have it had never fo long Continuance. 

But this is rather a great Evill to be abolifhed, as the 
Lawes of this Realme do playnely teach us ; for they iay, 
Cuftoms not grounded upon Reafon, cannot prefcribe. 
But you will fay, the Reafon is, to entife Straungers to 
come and inhabite the Realme. But what Intifertient 
can that be, when they themfelves by their Cominge fhall 
not be made free, nor may purchafe any Land to leave to 
their Pofterity ? And albeit that Reafon mayntayneth 
this Cuftome, yet can it not ferve the Lady Lennox : 
For her Father the Earle cam not into this Realme to 
inhabite and dwell in the fame, as before is fufficiently 
declared. Perchaunce it will be fayd, that !r is the Na- 

xxxvi APPENDIX. 

turc of the Soyle, to make fuch as be borne In England 
free in England ; But then how happeneth it, that this 
Property is private to England^ and not common to all 
other Countryes ? Truly this is not allowed in any other 
Country, and not without good Reafon : For Diviiion 
of KIngdomes and States, Ordinaunces of Cityes and 
Common Weales, and the Libertyes and Franchifes 
thereof, is not by Nature, but commeth of Confent of 
Men, and by Man's Law ; and they recey ved none to 
be free in their Common Weale^ but fuch as eyther for 
their Fayth, their Parents being free, and Citizens borne 
thereunto, they do not fufped,. but that they will walke 
in the Steppes of their Parents Fidelity; or els fuch, as 
upon great Confideration, and with Promife of their Fi- 
delity and Allegiaunce, they do newly admit to be Ci^ 
tizens ; of which Nomber younge Baber cannot be; for 
Simpliciter the Magiftrate can have no Refpedt of them • 
neyther be they meete, nor able to make any Promife 
of Band or Fidelity to the Common Weale ; for as the 
Common Weale k bound to maintayne and preferve 
thofe that are free, from Injuryes, Wrongs, and Injuftice ; 
even fo doth it require of them Promife to be true ther- 
unto, to ferve, helpe, and defend it to ther uttermoft 

And marke, I pray yov/, intd what Abfurdity yow fall 
into, if this (hold be admitted for Law, that every one 
borne in England fliold be free in England^ of whatibever 
l^ation his Parents were. 

I ask this Queftion : If the Child of an Allen borne 
in England^ be free in England by his Birth ; and by 
Reafon likewife, that his Father being a Scott^ be free al- 
fo in Scotland^ (as doubtlefs by their Law he is, wher- 
foever he be borne) if Warres fhold happen, as it 
hath many times done, betweene thefe two Realmes ; 
whofe Part fhall this Child take ? 

No Man can ferve two Mafters at one time, (fayeth 
the right Law- Maker, andalfo common Reafon) yf this 
Child fo borne, as I have before fayd, follow the Scot" 
t'tjhe Part, then is he a Traytor to Ingland ; and in like 
manner a Traytor to Scotland^ if he take Part with Ing- 
land : But if he will take Part with neyther of them, 
then he is a Traytor to both of them. 

iL For 

APPENDIX. xxxvll 

- For every Man by the Law of Nature, which is God's 
Law, and by the Lawes of each Reahne, is bound tci 
declare himfelfe a Member to one Common wealthe, or 
other, (that is) to beftow Life and Goods therof wheri 
neede requireth ; therefore I aske, which Part it is like 
he will take, that is thus a Mongrill of two Nations. 
Truly, in my Judgment, there is no Reafon, eyther to 
move Inglandj or Scotland^ to thinke, that fuch a Perfoil 
can be true to any of them both'; for it hath beene a 
Principle receyved of all Men, as long as Citizens and 
Eftates of Common weales have beene, that no Man can 
be 3 Citizen of two Cytyes, or a good Member of two 
Commonvveales ; bycaufe he can not ferve them both at 
once. Wherefore I can not fee, that this Propofition 
(that every Perfon borne in Ingknd^ of what Nation fo- 
ever his Parents were, fliold be free in Ingland) can be 
juftified by any Reafon ; and therfore the Lady Lennox . 
can take no Benefitt therby. 

But admit the Law of the Realme were certayne, that 
all Children borne within the Realme, fhold be free of 
vvhatfoever Nation the Parents were; yet if it be true 
that is reported, the Lady Lennox is clerely excluded by 
the Law of the Realme, to be Heyre to any Perfori of 
any PofTeffion within this Realme : for it is fa id, that at 
that time, when her Father the Earle oi Angwifhe was 
maryed to the Scottijhe Queene, her Mother, he had an- 
other Wifelivinge; wherefore there was a i3ivorfe fued 
betweene him and the Scottijhe Queene ; and after the 
fame Divorfe, the Scottijhe Queene (in the Life of the 
Earle of Angwijhe^ the fayd Lady Lennox Fatherj maryed 
the L. of Muffin, with whom (he continewed all her 
Life longe as Man and Wife.  

But 'It may be fayd, that that Divorfe can not difable 
the Lady Lmnox to be Inheritor to her Mother the Scot^ 
t'ljhe Queene ; for albeit he had another Wife livinge at 
that Time, that he maryed the Scottijhe Queene ; yet for- 
afmuch as fhe was ignorant therof, and maryed him (ho- 
na Jide) the Child borne of them is by the Common Law 
lawfull. True it is, that by the Common Law /he is 
Legitimate ; but the Lawes under which we be borne, 
and by the which we muft be judged, and wherby alfo 
•the Cafes of Inheritance be and muft be ruled, do not al> 

k low 

xxxviii APPENDIX. 

low her for Legitimate, as they do not likewife others in 
other Cafes. 

The Cannon Law fayeth, If a Man have begotten a 
Child of a Woman unmaryed, and after the Birth of the 
Child do marry her, the Child (hall be accounted legiti- 
mate, as if it had beene borne in lawful Matrimony : 
But the Lawes of Ingland be, and alwayes have beene 
contrary, that it (ball not be counted legitimate. Al- 
beit great Suite have beene made to the contrary, to 
make the Lawes of the Realme to agree with the Cannon 
Lawes in this Poynt, as appeareth by the Statute of 
Merton^ cap. ix. 

So albeit the Cannon Law alloweth theChild borne in 
the fecond Mariage, the (irft not being diffolved, to be 
lawfull, if any of the Parents thinke the Mariadge 
good ; yet do not the Lawes of the Realme allow the 
fame : But bycaufe the (irft Mariadge was never lawful- 
ly di(rolved, and that one Man can have but one Wife at 
once, it accompteth the fecond Mariadge voyd ; and the 
Child born therin is accompted a Baftard, and « not inhe- 
ritable within this Realme ; as appearethe by Glanmk^ 
Bra&on^ and Britton^ and all the whole Courfe of the 
Lawes receaved, and ufed, from the Beginninge unto this 
prefent Time; wherfore the Lady Lennox can extend 
juftly no Manner of Title to the Crowne of Ingland. So 
it may appeare by the Lawes of this Realme, that ney- 
ther the Scottijhe Queene, nor yet the Lady Lennox have 
any manner of Title to the Crowne of Ingland^ be they 
never fo neare of Blood ; the one, bycaufe (he is not the 
King's Child, nor free in Ingland -, the other, bycaule (if 
(lie were free) the Lawes do not allow her legitimate, 
and inheritable in this Realme, 

And therefore as to the next of Blood, and true and 
juft Heyre by our Lawes, the Crowne ought to difcend 
to the Heyres of the French Queene, which be the 
Daughters of the Lady Frauncls^ and the Lady Elianor^ 
and praefently to the Lady Catherine^ beinge eldeft Daugh* 
ter of the eldeft Sifter the Lady Fraumis, Agaynft thefe 
Heyres of the French Queene, thefe are objected : They 
fay, thefe cannot inherite ; why fo ? 

Bycaufe they were not lawfully borne; for Charles 
Duke of Suffolk had at that Time he maryed the French 


APPENDIX. xxife 

Oucene, another Wife livinge, that is, the Lady Mor- 

To this I aunfwere, that albeit it were true, that the 
' Lady Frauncis and the Lady Elianor were not lawfully 
borne, as it is not true, (as yow fliall heare hereafter) yet 
it hurteth not the Title of their Heyres, given by Kinge 
Henry his Will; for it is appoynted to the Heyres of - 
them, and not to themfelves, as the Will playnly de- 
ck reth. 

But verily this is a mere Slaunder, growen altogether 
upon Malice, and no Accufation made upon any juft 
Prsefumption ; for I befeech yow tell me, is it like, or 
can any reafonable Man thinke, that if Duke Charles 
had had another Wife livinge, when he maryed the 
French Queene, that Kinge H wold have confented, .^ 

that his Sifter (hold have receaved fo great Injury, that 
fhe (hold have bene kept like a Concubyne ? Wold 
his Counfayle have fufifered fo great an Infamy to have 
come to his Majefty's Stocke? Or wold the Nobility of 
the Realme, with fuch Triumphe, have honored fo 
unlawfull an Ade? Wold the common People, who 
many times be ready to fpeak Evil of Well-doinge^ 
have holden their Toungs in fo-manifeft Adultery? Is 
it like, that in fo long time, that the French Queene and 
the Duke lived together, as Man and Wife, (that was all 
the Life of the French Queene) that (he fliold not have 
heard of it ? 

Was it po(!ible, that amongeft fo many Women, 
which dayly reforted to her (whofe Nature yow know 
is to feeke for all fuch Things, be they never fo fecret, ' 
and to communicate them to others) that none wold 
have told her of it ? Or is it to be believed, that (he, 
contrary to the Nature of all other Women, wold have 
bene contented, that another fhold have bene Partaker 
of that Flefh, which fhe, according to God's Word, 
tooke only to be her owne ? Or can any Man thinke, 
that any Woman can be contented to live in meane De- 
gree, when ftie may be a Duches, as the Lady Mortymer 
might have bene juftly, if fhe had bene the Duke's 
Wife ? Surely there is no Reafon to make any Man to 
thinke fo; then muche lelTe to report fo. But fuppofe, 
that the Duke had had another Wife livinge, at the 
Time he maryed the Frenche Queue ; yet for as much as 

• he 


he and (he were maryed together openly, contynued all 
their Lives as Man and Wife together, and nothinge 
fayd agaynft them, and every Man tooke them for Man 
and Wife; and that the Lady Frauncis^ and the Lady 
Elianor were not taken to be Baflards duringe their 
Lives: Now, after their Death, neyther they, nor their 
Children may, by the Lawes of this Realme, be ac- 
compted foe. Nee jufium efi aliquando mortuiim facer e Ba^ 
fiardum^ qui toto tempore fuo tenehatur pro legitimo^ as ap* 
peareth by a Judgement given at Weflmlnfier^ in the 
xiij £. ^. 

But for the Declaration of the Trueth of this Mat- 
ter, and to put out of the Heades of the People this 
fond Opinion and Talke, which is onely moved of Ma- 
•T) lice, and commeth not of any certayne Knowledge, and 

encreafed by light Creditt without Ccnfideration, and 
maintayned by fuch, as no doubt pafle fo much upon 
the Trueth, as defirous to latisfy their froward Affe- 

Yow (hall underftand, that the Duke of Suffolke^ 
Charles Brandon^ beinge in the Court, livinge fole and 
unmaryed, made, a Contraft of Matrimony with one 
Mrs. Anne Browne', but before any Solempnization of 
Mariadge, not onely had a Daughter by her (which af- 
ter was maryed to the Lord Povpes) but alfo bi'ooke Pro- 
mile with her, and openly and folemply rnaryed with 
the Lady Mortymer; which Maryadge the fayd Mrs. Anne 
BroTpne, judicially accufed to be unlawfull ; for that the 
layd Sir Charles Brandon had not onely made a praecon- 
• trade with- her, but alfo had carnally knowen her; 
which Things being duly proved, and Sentence of Di- 
vorfe.betweene the layd Sir Charles and the Lady Morty^ 
mer given and denounced ; he maryed folemply the fayd 
Mrs. Anne Brovpne^ at the which Maryadge all the No- 
bility were praefent, and did honor it. And afterwards 
the fayd Sir Charles had by the faid Mrs. Anne Browne 
another Daughter, which was maryed to the L. Mount' 

After this the fayd Mrs. Anne Browne continewed 
with him all her Life as his Wife, and dyed his Wife, 
without any Impechement of the Mariadge: After 
whole Death Kinge Henry^ having him in great Favor, 
intended he fhold for his better Prsferrment have ma- 
• ryed 


rycd the Lady Lijle^ beinge a younge Mayd, and an In- 
heritor ; whereupon the layd Sir Charles was created Vi- ^ 
count Lljle. But that Mariadge by reafon of her Youth 
took no Place. After this he was created Duke of Suf-' 
folke^ about which Time Lewis the Frenche Kinge dyed : 
And leavinge the fayd Lady Mary (Daughter to Kinge 
H. the vijthj Widdow ; the fayd Charles Duke of Suf^ . 
folke was fent into Fraunce for her ; and with the Con- 
ftnt of Kinge H. maryed her twife ; firft fecretly in 
Framce, and after openly here in England (as before is 
declared) and fo they lived togither all their Lives longe, 
as Man and Wife ; and were fo accepted and taken of . 
all Parts, and no Perfons impungninge or gaynfayeinge 
of the fame : For there was no juit Caufe. After this 
they had Ififue betweene them, that is the Lady Fraunci/s, 
and the Lady Eliamr. 

Agaynft whom the Lady I'oweSy their bafe Sifter, in 
the Time of Kinge £(i. vjth, alledgyd Baftardy. But 
yet notwitbftanding that, they were both by the Lawes 
of the Realme, and by the Cannon Lawes, decla- 
red to be legitimate, and approved to be borne iri 
lawfull Matrimony ; fo as no Man can fay they be Ba- 
ftards. And if that they cold, yet at this prasfent, bycaufe 
it was adjudged for them, that it was not foe; and alfo, 
for that they both be dead, and dyed taken aS Legiti- 
mate, he ought not to be hard by Order of any Law in 
the World, if he wold objedt it agaynft them. But 
havinge no Occafion or Similitude of Truthe in the 
Spewinge out of this their malicious Stomachs, is ra- 
ther to be reproved as a Slaunderer, and as 'a fedicious 
Perfon goinge about to fow Sedition and Difcord in the 
Commonweale, to be punifhed even as one, which feek- 
eth by all meanesto moveCivill Warres in this Realme, 
and to bringe it to Deftru6lion ; and therefore as a Tray- 
tor to be taken to the Realme, and even as one purpo- 
finge to fabvert the good Providence of Almighty God, 
as God's Enemy to be adjudged, taken, and ufed. 

Thus have I declared unto yow my Judgement touch- 
inge the right Heyres to the Crowne of England in Re- 
maynder and Reverfion ; which is, as 1 take it, praefent- ,.? ^-, 
ly the Lady Catherine^ Daughter to the Lady FrauncU^ 
both by Kinge H. his Will, and alfo by the Common 
Lawes of this Realme; and that we be bound both by 
our Othes and alfo by our Lawes fo to take her. 

1 But 


But if we (hall for any Aflfeftion take away the Right 
from thofe, that have the Right, and which juftly ought 
fo to have ; then let us remember this Sayinge and peri- 
lous Threatninge of the Holy Ghoft ; Fropter inpflu 
cias 1^ injurias^ transferretur regnum a. gente in gentem. 

And thus (imply have I put this Queftion and Doubt 
in Writinge, to the ende it may the better and more 
perfectly be aunfwered r And if any Man will take 
the Paynes to do it, I require it may be done in Wri- 
tinge; fo fhall it quickly come to an IfTue; and if he 
can confound by juft Argument that, which I have be^ 
fore alleadged, he fhall both fatrsfye my Expectation, 
and alfo finde me ready to fay as he layeth. But if 
he cannot, then I require him for God's fake, and for 
the Love of his Country, to give Place to the Truetli 

V 1 X L 

^^f-^^^- Numb. VIII. 

30 Decmk ^ Copy of Henry Vlll.'i Will^ taken from the EzempJifia- 
'^ ' t/o«, that was enrolled in Chancery, and is Jince lofty 

^ ' ' which being more Corre& than that printed in Fuller 'j 

Church Hiftory, was thought proper to he layd before the 
Beader^ for his better Information in the Controverjy there- 
to relating, 

Irr(f in Dorp Clauf* Cancellar Dni mi Regis Ed' 
wardi Sezti de Anno Regni fui Primo. 


Henry R. 

N the Name of God, and of the Glorious and Blef- 

fed Virgin our Lady Sainft Mary^ and of all the 

Holy Company of Heaven. 

We Henry by the Grace of God King of England^ 
Fraunce and Irlande^ Defender of the Faith, and in Erth 
ymediately under God the fupreme Hed of the Church 
of England and Irlande of that Name Theight, calling 

«, &c. to our Remembraunce the great Gifts and Benefits of 
Almighty God given unto us in this Tranfitory Lief, 
give unto Him our moft lowly and humble Thanks, 
knowledging ourfelf infufficient in any part to deferve 


an eur. 

A P P k M b I X. 

or recoQipence the fame. But feaire that we haver not 
worthely received the fame. 

AnA confidering further alfo with ourfelf, that wc be, as 
all Mankind is, mortal and born in Sinne, believing ne- 
verthele$, and hoping that every Chriftien Creature \y^* 
ing here in this traniitory and wretched Woorld under 
God, dying in ftedfaft and perfaidt Faith, endeavoring 
and exercifing himfelf to execute in his Lief Tyme, if 

he have Leafur, fuch good Dedes and charitable Works, "^ ^'r- 
as Scripture commandeth, and as may be to the Honour 
and Pleafeur of God, is ordeyned by Chrifte Paffion to 
be favcd, and to atteyn Eternal! Lief; of which Nombre 
we verily truft by his Grace to be oon. 

And that every Creature, the more high that he is in 
Eftate\ Honor, and Authorite in this Woorld, the more 
he is bounde to love, ferve, and thank God, and the more 
diligently to endeavour himfelf to do good and chari- 
table Works to the Lawde, Honour, and Praife of Al- 
mighty God, and the Profit of his Sowle. 

We alio calling to our Remembrance the Dignite^ 
Eftate, Honour, Rule, and Gouvernance, that Almighty 
God hath called us unto in this Woorld, and that nei- 
ther We, nor any other Creature mortal! knowith the 
Tyme, Place, whenne, ne where it fhall pleas Almigh- 
ty God to call him out of this tranfitory Woorld. Wil- 
ling threfore and minding with Gods Grace before our 
Paffage out of the fame, todifpofeand ordre our latter 
Mynd, Will, and Teftament in that fort, as we truft it 
fhall be acceptable to Almighty God our only Savyour 
Jefus Chrifte and all the hole Company of Heaven, and 
the due Satesfadion of all godly Brethren in Erth. Have, 
therefore, now being of hole and perfaid Mynde, ad- 
hering holy to the right Faith of Chrift and liis Doctrine, 
repenting alfo our old and deteftable Lief, and being 
in perfaid: Will and Mynd by his Grace never to return 
to the fame, nor fuch like ; and minding by Gods 
Grace never to vary therefro as long as any Remem- 
braunce, Breth, or inward Knowledge doth, or may 
remayn within this mortal! Body, mooft humbly and 
hartly do commend and bequeyth our SouU to AU 
mighty God, who in Perfonne of the Sonne redeamed 
the fame with his mooft precious Body and Blood in 
Tyme of his Paffion. And for our better Remembraunce 

* thereof, 


thereof, hath left here with us in his Church Mihtant, 
the Confecration and Adminiftratioa of his precious 
Body and Blood, to our no little Confolation and Com- 
fort, if we as thankfully accept the fame, as he loving- 
ly, and undeferved on Man's behalf, hath ordeyned it 
for our only Benefit, and not his. AUb we do inftantly 
requyre and defire the BlefTed Virgin Mary his Mother, 
with all the Holy Company of Heaven, continually to 
Pray for us, and with us, whiles we ly ve in this VVoorld, 
and in the Tyme of paffing out of the fame, that we 
may the fooner atteyn Everlafting Lief after our Depar- 
ture out of this tranfitory Lief, which we do both hope 
and clayme by Chrifis Paflion and Woord. And as for 
my Body, which whenne the Soul is departed, fhall 
thenne remayn but as a Cadaver, and fo return to the vile 
Matter it was made of; wer it not for the Rowme and 
Dignitye, which God hath called us unto ; and that we 
woold not be noted an Infringer of honeft worldly Policies 
and Cuftumes, whenne they be not contrary to Gode 
Lawes; We woold be content to have it buryed in any 
Place forChriftien Folke, were it never fo vile; for it is 
but Afhes,and to Alhes it (hall again. Nevertheles, bicaus 
we woold be lothe in the Reputation of the People, to 
do Injurye to the Dignite, which we unworthily are cal- 
lid unto \ 

We are content, and alfo by thefe Prefentes our lafl: 
Will and Teftament do Will and Ordeyn, that our Bo- 
dy be buryed and enterred in the Quere of our College 
of Wmdefour^ Midway between the Statte and the high 
Auttare^ and there to be made and fette, aflbne as con- 
veniently may be doon after our Deceafle, by our Exe- 
cutours, at our Cofte and Charge, if it be not done by 
us in our Life-time, an honorable Tombe for our Bones 
to reft in, which is well onward, and almooft made 
therefor alredye, with a fayre Grate about it ; in which 
we will alio, that the Bones and Body of our true and 
loving Wief Queene 'Jane he put alfo ; and that there 
be provided, ordeyned, made, and fett, at the Cofte and 
Charge of us, or of our Executours, if it be not done in 
our Life, a convenient Aulter, honorably prepared, and 
apparailled with all Maner of Thinges requifite and 
neceffary for Dayly Maftes, there to be fayd perpetuelly, 
while the Woorld ftial endure. 



Alfo we will, that the Tombes and Aultars of 
King Henry the vjth, and alfo of King Edward the ivth 
our Great Uncle and Graunt-Father, be made more 
Princely, in the fame Place where they new be, at our 

And alfo will and fpecially defyre and requyre, that 
where and whenfoever it fhall pleas God to call us out 
of this World Tranfitory to his Infinite Mercy and 
Grace, be it beyonde the See, or in any other Place 
without our Realme of England^ or Within the fame, 
that our Executours, aflbon as conveniently they may, 
fliall caufe all Divine Service accuftumed for Dead Folke 
to be celebrate for us, in the nixt and moft propire Place 
where it fhall fortune us to depart out of this Tranfitory 

And over that we will, that whenfoever or whetefo- 
ever it fhall pleas God to call us out of this Tranfitory 
Lief to his Infinite Mercy and Grace, be it within this 
Realme, or without, that our Executours, in as goodly, 
brief, and convenient haft, as they reafonably canne, or 
may, ordeyn, prepare, and caufe our Body to be removed, 
conveyed, and brought into the fayd College of Winde- 
four ; and the Service of Placebo and Dirige^ with a Ser- 
mon and MafTe on the Morowe, at our Cofte and Charge, 
devoutly to be done, obferved, and folemply kept, there 
to be buryed and enterred in the Place appointed for 
our fayd Tombe, to be made for the fame Entent ; arid 
all this to be doon, in as devout wife, as canne, or may 
be doon ; and we will and charge our Executours, that 
they difpofe and give in Aulmes to the mooft poore and 
nedy People, that may be found, commyn Beggars, as 
moch as may be, avoyded, in as (hort Space as poffibly 
they may, after our Departure out of this Tranfitory 
Lief, Oon Thoufand Marke of Lawfull Money of Eng^ 
land^ Part in the fame Place, and thereabout, where it 
fhall pleas Almighty God to call us to his Mercy, Part 
by the way, and Part in the fame Place of our Buryall, 
after their Difcretions ; and to move the poore People^ 
that fhall have our Almez,to pray hartly unto God for 
Remiffion of our Otfenfes, and the Wealth of our Soul. 

Alfo we woll, that with as convenient Spede as may 
be doon after, our Departure out of this Woorld, if it be 
not doon in our Life, that the Deane and Channons of 

m our 



our Free Chaple of Sainft George^ within our Caftle of 
Windefor^ (hall have Manours, Lande, Tenement, and 
Spiritual Promotions, to the Yerly Value of Sixe Hun- 
dred Pounde, over all Charge made fure to them, to 
them and their Succeflburs for ever, upon thefe Condi- 
tions hereafter enfuying. 

And for the due and full Accomplifhment and Par- 
formaunce of all other Things conteyned with the fame, 
in the Forme of an Indenture, figned witli our oun 
Hande, which (liall be pafled by way of Covenaunt for 
that Purpofe, betwen the fayd Deane and Cannons, and 
our Executours, if it pafTe not betwen us and the fayd 
Deane and Cannons in our Lief; that is to Jaye^ the fayd 
Deane and Cannons^ and their Succeflburs for ever, fhall 
fynde twoo Priefts to fay Mafles at the fayd Aulter, to 
be made where we have before appointed our Tombe to 
be made and ftand ; and alfo, after our Deceafe, kcepe 
yerely Four folempe Obits for us within the fayd Col- 
lege of Windefour; and at every of the fame Obits ^ to 
. caufe a folempne Sermon to be made. 

And alfo, at every of the fayd Obits^ to give to poore 
People in Almez, Tenne Pounds. 

And alfo to give for ever yerly, to Thirtene poore 
Men, which (hall be called Poore- Knights, to every of 
them Twelf Pens every Daye, and ones in the Yere yere- 
ly for ever, a long Goune of White Cloth, with the 
Garter upon the Breft, embrodered with a^Shelde and 
Croffe of Sainft George within the Garter, and a Mantel 
of Red Cloth ; and to fuch one of the fayd Thirtene 
Poore Knights, as fhall be appointed to be Hed and Go- 
vernour of them, iij /. vj s. viij d. yerely for ever, over 
and befide the fayd Twelf Pennes by the Day. 

And alfo to caufe every Sonday in the Yere for ever, a 
Sermon to be made for ever at Windefour aforefayd, as in 
the fayd Indenture and Covenaunt fhall be more fully 
and particularly exprefled. Willing, charging, and re-» 
quyring our Sonne Prince Edward^ all our Executours 
and Counfellours, which fhall be named hereafter, and 
all other our Heirs and Succeflburs, which (hall be 
Kings of this Realme, as they will aunfwer before Al- 
mighty God at the dreadful Day of Judgment, that 
they, and every of them do fee, that the fayd Indenture 
and AfTurance to be made betwene us and the fayd Deane 


APPENDIX. xlvii 

and Cliannons, or betwen them and our Executours, 
and all Things therein conteyned, may be duely put in 
Execution, and oblerved and kept for ever perpetuelly, 
according to this our Laft Will and Teftament. 

And as concerning the Ordre and Difpofition of 
Thimperial Croune of this Realme of England and Ir- 
landy with our Title of Fraume^ and all Dignityes, Ho- 
nours, Preeminences, Prerogatives, Authorityes, andju- 
rifdi6tions to the fame annexed, or belonging, and for 
the fure Eftablifhmejit of the Succeffion of the fame. 

And alfo for a full and plain Gift, Difpofition, Af- 
fignment. Declaration, Limitation, and Appointment, 
with what Conditions our Doughters M^ry and Elizabeth 
Hiall feveraliy h^e, hold, and enjoye the fayd Imperial 
Crowne, and other the PremifTes, after our Deceafe ; , 
and for Default of IfTue, and Heirs of the feveral Bo- 
dyes of us, and of our Sonne Prince Edward^ lawfully 
begotten, and his Heires. 

And alfo for a full Gift, Difpofition, Affignment, 
Declaration, Limitation, and Appointeraent, to whom, 
and of what Eftate, and in what Manner, Form, and 
Condition, the fayde Imperial Crowne, and other the 
Premififes fhall remayne, and cum after our Decefle ; and 
for Default of IfTue, and Heires of the feveral Bodyes of 
us, and of our fayd Sonne Prince Edward^ and of our 
fayd Doughters Mary and Elizabeth^ lawfully begotten ; 
we, by thele Prefents, do make and declare our Laft 
Will and Teftament, concerning the fayd Imperiall 
Crowne, and all other the PremiiTes, in Manner and 
Form following : 

That is to fay, we will by thefe Prefents, that imme' 
diately after our Departure out of this prefent Lief, our 
fayd Sonne Edward fhall have and enjoye the fayd Impe- 
riall Crowne and Realme of England and Irlande^ our 
Title to Fraunce^ with all Dignityes, Honours, Pre- 
eminences, Prerogatives, Authorites, and Jurifdid:ions, 
Lands, and PofTeffions to the fame annexed, or be- 
longing, to him, and to his Heires of his Body lawfully 

And for Default of fuch Iflue of our fayd Sonne 
Prince Edward's Bodye lawfully begotten, we will the 
fayd Imperiall Crowne, and other the Premifles, after 
our two Deceafle, (hall holly remayn and cum to the 


xlviii APPEND IX. 

Heires of our Body lawfully begotten of the Body of 
our entlerly beloved Wief Quene Katheryn that now is, 
or of any other our lawfuU Wief, that we fhall hereafter 

And for Lack of fuch Iflue and Heires, we will al- 
io, that after our Deceafle, and for Default of Heires of 
the feveral Bodyes of us, and of our fayd Sonne Prince 
Edward lawfully begotten, the fayd Imperial Crowne, 
and all other the Premiffes, (hall holly remayn and cum 
Int'Lin'. to our fayd Doughter Mary^ and the Heires of her Body 
lawfully begotten, upon Condition, that our fayd Dough- 
ter Mary^ after our Decea fife, fhall not mary, ne take any 
Perfonne to her Husbande, without the Affent and Con- 
lent of the Privy-Counfaillours, and others appointed 
by us, our deereft Sonne Prince Edward aforefayd to be 
of Counfail, or of the mooftPart of them, or themooft 
Part of fuch as fhall then be alyve^ thereunto before the 
fayd Mariage had in Writting, fealed with their Seales. 

All which Condition we declare, limitc, appoindt", 
and will by thefe Prefents, fhall be knitt and inverted to 
the fayd Eftate of our fayd Doughter Mary in the fayd 
Imperial Crowne, and other the PremifTes. And if it 
fortune our fayd Doughter Mary to dye without IfTue of 
her Body lawfully begotten, we will, that after our De- 
ceafTe, and for Default of IfTue of the feveral Bodyes 
of us, and of our fayd Sonne Prince Edward^ lawfully 
begotten, and of our Doughter Mary^ the fayd Imperial 
Crowne, and other the PremifTes fliall holly remayn 
and cum to our fayd Doughter Elizabeth^ and to the 
Heires of her Body lawfully begotten, upon Condition 
that our fayd Doughter Elizabeth^ a^ter our DeceafTe, 
fhall not mary, nor take any Perfonne to her Husbande, 
without the AfTent and Confent of the Privy-Counfail- 
lers, and others appointed by us to be of Counfail! with 
our fayd deerefi: Sonne Prince Edward^ or the mooft Part 
of them, or the moofl Part of fuch of them, as fhall be 
thenne enly ve, thereunto before the fayd Mariage had in 
Writting, fealed with their Seales; which Condition we 
declare, limite, appoint, and will by thefe Prefents, 
fhall be to the fayd Eftate of our fayd Doughter Eliza- 
beth in the fayd Imperial Crown, and other the PremifTes, 
knitt and invefted. 


y-i P P E N D I X. xliX 

And if it (hall fortune our fay'd Doughter Elizahetb 
to dye without Ififueof her Body lawfully Begotten, we. 
will, that after our Deceafe, and for default of IfTue of 
the feverall Bodyes of us, and of our fay'd Sonne Prince 
Edwardy and of our fay'd Doughters Marj and Eliza^ 

We will that the fay'd Imperial Crown and other the 
Premiffes, after our Deceafife, and for default of ThifTue 
of the feverall Bodyes of us, and of our fay'd Sonne 
Prince Edward^ and of our fay'd Doughters Mary and 
Elizabeth^ lawfully Begotten, fhall holly remayn and cum 
to the Heires of the Body of the Lady Fraunces our 
Niepce, eldeft Doughter to our late Sufter the French 
Queue, lawfully Begotten ; and for default of fuch Iflue, 
of the Body of the fay'd Fraunces^ we will that the fay'd 
Imperial Crowne and other the Premiffes, after our De- 
ceaffe, and for default of Iffue of the feveral Bodyes of 
us, and of our Sonne Prince Edwarde^ and of our 
Doughters Mary and Elizabeth^ and of the Lady Fraun- 
ces^ lawfully Begotten, Ihall holly remayn and cum to 
the Heires of the Body of the Lady Elyanore. our Niepce, 
fecond Doughter to our fay'd late Sifter the French Queue, 
lawfully Begotten. And if it happen the fay'd Lady 
Elyanore to dye without Iffue of her Body lawfully Be- 
gotten, we will, that after our Deceaffe, and for default 
of Iffue of the feveral Bodyes of us, and of our fay'd 
Sonne Prince Edwarde, and of our fay'd Doughters Ma- 
ry and Elizabeth^ind of the fay'd Lady Fraunces^ and of 
the fay'd Lady Elyanore^ lawfully Begotten, the fay'd 
Imperial Crowne, and other the Premiffes, fhall holly 
remayn and cum to the next rightfull Heirs. Alio we 
will, that if our fay'd Doughter Mary doo mary with- 
out the Confent and Agreement of the Privy Counfayl- 
lours, and others appdinded by us to be of Counfail to 
our fay'd Sonne Prince Edwarde^ or the mooft Part of 
them, or the mooft Part of fuch of them as fliall thenne 
be alyve, thereunto before the fay'd Mariage had in 
Writting, fealed with their Seales, as is aforefaid ; that 
thenne and from thensforth, for lack of Heires of the fe- 
veral Bodyes of us, and of our laid Sonne Prince Ed' 
rvarde^ lawfully Begotten, the fayd Imperial Crown, and 
other the Premiffes fhall holly remayn, be, and cum to 
our fay'd Doughter Elizabeth^ and to the Heires of her 
{ n Body 

J P P E N D I X. 

Body, lawfully Begotten, in fuch Mancr and Forme, as 
though our lay*d Daughter Mary vver thenne dead, with- 
out any Iflue of the Body of our fay'd Doughter ^^r)', 
lawfully Begotten, any thing conteyned in this our Will, 
or in any kOi of Parliament, or Statute to the contrary, 
in any wife notwithflanding ; and in cafe our fay'd 
Doughter the Lady Mary^ do kepe and parforme the 
fay'd Condition, expreffed, declared, and limited to her 
Eftate in the fay'd Imperial Crowne, and other the Pre- 
mifles by this our laft Will declared. 

And that our fay'd Doughter Elizabeth for her Parte, 
do not kepe and parforme the fay'd Condition declared 
and limited by this our laft Will, to the Eftate of the 
fay'd Lady Elizabeth^ in the fay'd Imperial Crown of this 
Realme of England and Irlande^ and other the Premif- 
fes, we will that thenne and from thensforth, after our 
Deceafie, and for lack of Heires of the feverall Bodyes 
of us, and of our fay'd Sonne Prince Edwarde^ and of 
our fay'd Daughter Mary^ lawfully Begotten, the fay'd 
Imperial Crown, and other the Premifles, Qiall holly 
remayn and* cum to the next Heires, lawfully Begotten, 
of the Body of the fay'd Lady Fraunces^ in fuch Manner 
and Forme, as though the fay'd Lady Elizabeth werthen 
dead, without any Heire of her Body lawfully Begotten. 
Any thing conteyned in this Will, or in any A6t, or Sta- 
tute to the contrary notwitjiftanding. 

The Remaindres over, for lack of IfTue of the fay'd 
Lady Frmnces lawfully Begotten, to be and continue to 
fuch Perfonnes like Remaindres and Eftate, as is before 
limited and -declared. ' 

Alfo we being now at this Tyme, thanks be to Al- 
mighty God, of perfai61: Memory, do conftitute and 
ordeyne thefe Perfonages following our Executours, and 
Parform.ers of this our laft Will and Teftament, willing, 
commaunding, and praying them to take upon them 
Thoccupation and Parformance of the fame, as Execu- 

That is to fay, Tharchebiftiop of Cantorbury^ the Lord 
Wriothejly Chancellor of England^ the Lord St. 'John Ma- 
fter of our Houfe. 

Therle of Hertford^ Great Chambrclain of Englande. 

The Lord Rujfel^ Lord Privy Seale. 

The Vifconte L//7e, High Admiral o{ Englande. 




The Bifhop Tun flail of Durefme. 
Sir Anthony Brown Knight, Mafter of our Horfe. 
Sir Edward Mountagu Knight, Chief Juge of the Conl> 
myn Place. 

Juftice Bromley. • 

Sir Edward North Knight, Chancellour of Thaug- 

Sir William Paget Knight, our Chief Secretary. 
Sir Anthony Dunny^ Sir William Harbard Knights, 
chief Gentlemen of our Piivey Chambre. 

Sir Edward Wootton Knight, and Mr. Doctor Wootton 
his Brother. # 

And all thefe we woll to be our Executours and Coun- 
faillours of the Privy Counfaill with our fay'd Sonne 
Prince Edwarde^ in all Maters concerning both his pri- 
vate AfFayres, and publick AfFayres of the Realme. 

Willing, and charging them, and every of them, as 
they muft and fhall aunfwer at the Day of Judgement, 
truely and fully to fee this my laft Will parformed in 
all thinges, with as mooch fpede and diligence as may 
be ; and that noon of them prefume to medle with any 
of our Treafeur, or to do any thing appbiuifled by our 
fay'd Will aloiie, onlefs the mooft Part of the hole Nom- 
bre of their Coexecutours doo confent, and by Writting 
agree to the fame. 

And will that our fay'd Executours, or the mooft 
Part of them, may lawfully do what they fhall thinke 
moofte convenient for Thexecution of this our Will, 
without being troubled by our fay*d Sonne, or any O' 
thers, for the fame- 
Willing farther by this our laft Will and Teftament, 
That Sir Edmund Peckham our trufty Servaunt, and yet 
Coferar of our Houfe, fhall be Treaforer, and have the 
Receipt and Layihg out of all fuch Treafeur and Mo- 
ney, as (hall be defrayed by our Executours for the Par- 
formaunce of this our laft Will ; ftraidly chardging and 
commaunding the fay'd Sir Edmunde^ that he pay no great 
Somme of Money, but he have furfte the Haunds of our 
fay'd Executours, or of the mooft Part of them, for his 
Difcharge, touching the fame; charging him fur- 
ther upon his Allegeaunce, to make a true Accompt 
of all fuch Sommes, as ftiall be delivered to his Handes 
for this Purpofe. And lithens we have now named 



and conftltuted our Executours, we woll and charge 
them, that furft and above all thinges, as they will 
aunfwer before God, and as we put our finguler Truft 
and Confidence in them, that they caufe all our due 
Debts, that can be reafonnably (hewed and proved be- 
fore them, to be truly contented and pay'd, affcne as 
they conveniently can, or may, after our Deceas, with- 
out longer Delaye. 

And that they do execute thefe Poinds Furfl. That 
is to fay, the Payment of our Debts, with Redres of In- 
juries, if any fuch can be duely proved, though to us 
they be unknowen, before any other Part of this our 
Will and Teftament, our Bury all Exequycs and Fune- 
rals only excepted.^ 

Furthermore We woll, that all fuch Graunts and 
Gifts, as we have made, gyven, or promifed to any, 
which be not yet parfaided under our Signe, or any our 
Scales, as they ought to be, and all fuch Recompenfes 
for Exchaunges, Sales, or any other thing or things, as 
ought to have been made by us, and be not yet accom- 
plilhcd, Ihall be parfaided in every Point towards all 
inaner of Men, for Difcharge of our Confcience ; char- 
ging our Executors, and all the reft of our CounfaiOers, 
to fee the fame done, parformed, finifhed, and accom- 
plifhed in every Poind, forfeing, that the fay'd Gifts, 
Graunts, Promifles, and Recompenffes fhall appere to 
our fay'd Executours, or the mooft Part of them, to have 
been graunted, made, accorded, or promifed by us in any 
maner wife. 

Further, According to the Lawes of Almighty God^ 
and for the Fatherly Love which we beare to our Sonne 
Prince Edvparde^ and to this our Realme, we declare 
Him, according to Juftice, Equite, and Confcience, to 
be our Lawfull Heire ; and do give and bequeath unta 
Him the Succeffion of our Realmes of Englande and Ir- 
lande^ with our Title of FrflM«ce, and all our Dominions^ 
both on this fide the Sees and beyond, (a convenient 
Portion for our Will and Teftament to be referved.) 

Alfo we give unto Him all our Plate, Stuff of Houfe- 
hold, Artilery, Ordenaunce, Munitions, Ships, Cabelle^ 
and all other Things and Implements to them belong- 
ing, and Money alfo, and Jewelz, faving fuch Portions^ 
as fliall fatisfye this our laft Will and Teftament, charging^ 



and commanding Him, on peyne of our Curfe, feing He 
hath fo loving a Father of us ; and that our chief Labour 
and Study in this Woorld is, to eftabhfli Him in the 
Crowne Imperial of this Realme, after our Decea^fle, iri 
fuch fort as may be pleafing to God, and to the Wealth 
of this Realme, and to his owne Honour andQuyet; 
that he be ordered and ruled both in his Mariage, and 
alfo in ordering of Thaffaires of the Realme, as well 
outward as inwarde; and alfo in all his owne private 
Affaires ; and in gyving of Offices of Charge by Thad- 
vice and Counfail of our Right entirely-beloved Coun- 

Tharchbidiop of Cantorhury^ 

The \^ot<\ Wriothejley^ Chancellour oi England^ 

The Lord St. John^ Great Mafter of our Houfe^ 

The Lord Rvjfel^ Lord Privey Seale, 

Therle of Herz/ort/, Great Chambrelaine of £«g/We, 

The Vifcount Lijle^ High Admiral oiEriglande^ 

The Bifliop of Durejme.^ TunJlaU^ 

Sir Anthony Brown^ Mafter of our Horfe, 

Sir William Paget^ our chief Secretaryey 

Sir Anthony Denny^^ 

Sir William Herberd, 

Juftices Montague and Broifihy^ 

Sir Edward Wootton^ and Mr. Dodor Wooiton^ 

And Sir Edward Uorth^ 
Whom we ordeyn, name, and appoint , and by 
thefe Prefents, figned with our Hand, do make and 
conftitute of Privey Counfail with our fa id Sonne ; 
and woll, that they have the Gouvernment of our moott 
deere Sonne Prince Edwarde^ and of all our Realmes, 
Dominions, and Subjedz, and of all Thaffaires pub- 
licq and private,- untill he fhall have fully accorapleted 
the Eightenth Yere of his Age. And for becaufc tlie 
Variete and Nombre of Things, Affaires, and Maters, 
ar and may be fuch, as we not knowing the certainty of 
them before, cannot conveniently prefcribe a certain 
Order or Rule unto our forefaid Counfaillours for their 
Behavoirs and Procedings in this Charge, which we 
have now, and do appoint unto them about our Tay'd 
Sonne, during the Tyme of his Minorite aforefay'd. 

We therefor, for the fpeciall Truft and Confidence 
which we have in them, woll, and by thefe Prefents 

o do 



do give and graunt full Powre and Authorite unto our 
fayd Counfaillours, that they all, or the mooft part of 
them, being aflembled togidres in Counfaill; or if any 
of them fortune to dye, the more Part of them which 
fhall be for the tyme iyving, being aflembled in Coun- 
faill togidres, (hall, and may make, devife, and ordeyn 
what things foever they, or the more Part of them, as 
aforfayd, Ihall, during the Minorite aforfayde of our 
faid Sonne, think meet, neceflary, or convenient, for 
the Benefite, Honour, and Surety, or the Weale, Pro- 
fet, or Commodite of our fayd Sonne, his Realmes, 
Dominions, or Subjedz, or the Difcharge of our Con- 
fcience : And the fame things devifed, made, or or- 
deyned by them, or the more Part of them as aforfayd, 
Ihall, and may lawfully do, execute, and accorapliihe, 
or caufe to be done, executed, and accompliihed, by 
their Difcretions, or the Difcretions of the more Part 
of them, as aforfayde, in as large and ample maner, as 
if we had or did exprefle unto them, by a more fpe- 
cial Commiflioa undir our Great Seale of Englande^ 
every particular Caufe, that may chaunce or occurre du- 
ring the Tyme of our Sonnes fayde Minorite, and the 
felf-fame maner of Proceeding, which they (hall for the 
tyme think meet to ufe and follow. 

Willing and charging our fayd Sonne, and all others 
• which (hall hereafter be Counfaillours to our fayd 
Sonne, that they never charge, moleft, trouble, nor dif- 
quyet our forfayde Counfaillours, nor any of them, 
for the devifing, or doing, nor any other Perlbnne for 
the doing of that they fhall devi(e, or the more Part 
of them devife, or do, a(rembled as aforfaide. 

And we do charge exprefifely the fame our entierly 
beloved Counfaillours and Executours, that they (hall 
take upon them the Rule and Charge of our fayd Sonne 
and Heire, in all his Caufes and Affaires, and of the 
hole Realme, doing neverthele(re all things, as under 
him, and in his Name, until our fayde Sonne and Heire 
Ihall be beftowed and maryed by their Advife, and that 
the Eightenth Yere be expyred. 

Willing and defyring furthermore our forfayd trully 
Counfaillours, and then all our trufty and affured Ser- 
vauntz, and Thirdly^ all other our loving Subge(Stz, to 



ayde and affift our fornamed Coiinfaillours in Thexecii- 
tion of the Premifles, during the foriayde Tyme. 

Not doubting but they will in all things deale h 
truely and uprightly, as they fliall have caufe to think 
them well chofen for the Charge committed unto 

Straidly charging our fayd Counfaillours and Exe- 
cutours, and in God's Name we exhort them, that 
for the lingular Truft and fpeciall Confidence, which 
we have and ever had in them, to have a due and di- 
ligent Eye, perfaift Zeale, Love, and Affeftion to the 
Honour, Surety, Eftate, and Dignitye of our fayde 
Sonne, and the good State and Profperite of this our 
Realme. , , , 

And that all Delayes fett apart, they will ayde and 
affifte our fayde Counfaillours and Executours to the 
Parformance of this our prefent Teftament and laft Will 
in every Part, as they will anfwer before God at the 
Day of Judgement, 

Cum Demrit Judkare 'uruos iy mortuos. 

And furthermore, for the fpecial Truft and Confi- 
dence which we have in the Erles of Arundel and Ejfex 
that now be, ^\x Thomas CheneyYs.m^ty Treaforer of our 
Houfehold, Sir John Gage Knight, Comptroler of our 
Houfehold, Sir Anthony Wingfeld Knight, our Vice- 
Chambrelayn, Sir William Petre Knight, oon of our twoo 
Principall Secretary es, Sir Richard Rich Knight^ Sir John 
Bakr Knight, Sir Roufe Sadleyr Knight, Sir Thomas Sey^ 
mom Knight, Sir Richard Southwell^ and Sir Edmund Fech 
/jflOT Knights, they, and every of them (hall beofCoun- 
fayl for the ayding and affifting of the fornamed Coun- 
laillours, and our Executours, when they, or any of 
them (hall be called by our fayd Executours, or the 
more Part cf the fame. 

Item^ We bequethe to our Doughters Mary and Eli- 
zabeth's Mariages, they being maryed to any outward Po- 
tentate, byThadvife of the forfayd Counfaillours, if we 
beltow them not in our Life-time, Ten Thoufand Pounds 
in Money, Plate, Jewelz, and Houfehold-Stuffe, for 
ech of them ; or a larger Somme, as to the Difcretion 
of our Executours, or the more Part of them, (hall be 
thought convenient : Willing them, on my BlefTmg, to 



be ordrecl, as well in Martage, as in all other lawfiili 
Things, by Thadvife of our forfayd Counfaillours ; 
and in cafe they will not, thenne the Somme to be mi- 
nilhed at the Counfaillours Difcretion. 

Further our Will is, that from the furft Howre of oUr 
Death, until fuchTyme, as the fayde Counfaillours canne 
provide, either of them, or bothe, of fum honourable 
Mariages, they (hall have eche of them Three Thoii- 
fand Pounds, ultra Reprifas^ to live on; willing, and 
charging the forfayde Counfaillours, to limite and ajv 
poinft to either of them, fuch fage Officer?, and Mini- 
fters for ordering thereof, as it may be employed both 
to our Honour and theirs. 

And for the great Love, Obedyence, Chaftnefs of 
Lief, and Wifedome, being in our fornamed Wief and 
Queue, we bequeth unto her for her proper life, and 
as it (hall pleas her to ordre it, Thre Thoufand Pounds 
in Plate, Jewelz, and Stuff of Houfehold, befides fuch 
Apparail, as (hall pleas her to take of fuch as flie hath 
alredy. And further we give unto her One Thoufand 
Pounds in Money, with the enjoying of her Dowser and 
Jointer, according to our Graunt by Ad: of Parliament. 

Furthermore, for the Kindnes and good Service that 
our fayd Executours have lliewed unto us, we gyve and 
bequeth to eche of them, fuch Sommes of Money, or 
the Value of the fame, as hereafter enfuith. 


Firft^ To Tharchbifhop of Cantorbury . . v Marks 

To the Lord Wriothefley ..... v Lib. 

To the Lord St. John ..... v Lib. 

To the Lord Ruffel v Lib. 

To the Erie of Hertford v Lib. 

To the Vifcount Lijle . . . . v Lib, 

To the Biihop of Durefme , . • iij Lib. 

To Sir Anthony Brown . . . - iij Lib. 

To Sir William Paget . . . .iij Lib. 

To Sir Anthony Denny . . . .iij Lib. 

To Sir WiUiam Herbert . . . .iij Lib. 

To Ju(tice Montague iij Lib. 

To Juflice Bromley ... . .iij Lib, 

To Sir Edward North . . . .iij Lib. 

To Sir Edward Wbotton ., . . , iij Lib. 

To Mr. Do^ov Wbotton . . , iij Lib. 



Alfo for the fpeciall Love and Favour, that we 
bear "to our Trufty Counfaillours, and other our fay 'd 
Servaunts hereafter following, we give and bequedi 
unto them fuch Sommes of Money, or the Value there- 
of, as is lotted upon their Hede. 


Ftrfl^ To Therle of Ejfex . ; ; ij Lik 

To Sir Thomas Cheney , , , ij JJb» 

To the Lord Herberd . . . ij JJb, 

To Sir John Gage . . . . ij Lib. 

To Sir Thomas Seymour . . . ij Lib, 

To John Gates . . ij Ub* 

To Sir T/^/wflj- D^rc)' Knight . . . . ij Lib. 

To Sir Thomas Speke Knight . , . ij Marks 

To Sir Philip Hobby Knight . . . . ij Marks 

To Sir Thomas Fafion . . . . . ij Marks 

To Sir Maurice JBarkky . . . . ij Marks 

To Sir Rafe Sadleyr . . . . ij Lib. 

To Sir Thomas Garden '. , . . ij Lib. 

To Sir Veter Meutes . . . . ij Marks 

To Edward Belingham . . . . ij Marks . 

To Thomas Audley . . , . : ij Marks 

To Edmunde Barman . . • ij Marks 

To John Fen . . . . j Aiarks 

To Henry Neuil . . . . j Lib. 

To Symbarbe . . . . . j Lib, 

To Cooke . . , . . j Lib. 

To John Osburn . . , , . • j LB. 

To DiJZ'if/ Vincent . . . , . . j Lib. 

To James Rujforth^ Keeper of our Hous here J Marks 

To Cecitt., Yoman of our Robes j Marks 

To Sternholdy Grome of our Robes j Marks 

To y^in Rouland^ Page of our Robes 1 Lf^. 

To Therle of Arundell^ Lord Chambrelain ij Lib. 

To Sir Anthony Wingfeld^ Viz Chambrelain ij Lib. 

To Sir Edmund Peckham . . . ij Li^. 

To Sir Richard Riche I . . ij Lib. 

To Sir 7o;&« 5aj^er . . . . ij I/'^. * 

To Sir Richard Southwell . . . ij Lib. 

To Mr. Dodtor Owen . . . j Li^. 

To Mr. Doftor Wendy . . . } Lib. 

To Mr. Doftor Cromer , . .J Lib. 

To i^i/op ... . j Marks 

o To 



To Patrick , '• I ", , 

To Ayliff . . ; . 

To Ferrys ... 

To Hf«ry . . . , . 

To Hollande . ... 

To Ae Foure Gentlemen Huifh'ers of our^ 
Gharabre, being dayly Wayters, in all< 

j Marks 

j Marks 

j Marks 

j Marks 

ij If^. 

And we will alfo, that our Executours, or the more 
Part of them, fhall give Ordre for the Payment of fuch 
Legacyes, as they fhall, think meet to fuch our Ordenary 
Serviuntz, as unto whom we have not appointed any 
Legacye by this our prefent Teftament. 

Finally, this prefent Writing in Paper, we ordeyn 
and make our Laft Will and Teftament, and will the 
fame to be reputed and taken to all Entents and iPur- 
pofes, for our good, ftrong, vaillable, mooft parfait, 
and L^ft Will and, Teftament , and do declare all other 
Wflls and Teftaments made at any. Ty me by us, to be 
voyd, and of .Non EfFe6t. 

^in Witnefs. whereof we have figned it with our Hand 
in'^urPalays of Wefimmfier^ the Thirty Day of Vecembre^ 
in the Yere of our JL.ord God A Thoufand Fyve Hun- 
dred Pour ty and Six, after the Computation of the 
Church of England^ and. of our Reign the Eight aftd 
Thirty Yere. ... 

Being prefent, and called to be WitnelTes, thefe Per- 
fones Which have written their Names herunder. 

Henry R. 
John Gates, 

George Owen. 
Thonias Wendye, 
Robert Huycke. 

W: Clerk, 

Under his Royal Signet 
of Red Wax hanging 
by White and Green 
'Ribbons. q 

E. Harman. 
WyUiam Sayntharbe, 
Henry Neuell. 
'Richarde Coke. 
David Vincent. 

The Will is written 
in Paper. 

N U M B. 


Numb. IX. 
T; . r / 

Speech of the Lord Chancellor Ellefmere in the Exchequer 

Chamber^ touching the Vo^mXi^ p. 104, 

IN fome Special Cafes, there fometime may be a 
King of Subje6ts without Land in PofTefiiion, as JU' 
IticelFt/zner noted in the Government, which Mofes had 
over the People of Ifrael in the Wildernefs ; and as in 
the Cafe, which Sir ^ohn Popham^ the late Lord Chief 
Juftice, did put in the, Parliament : If a King and his 
Subje^s be driven out of his Kingdom by his Enemies^ yet 
noi>mthjtanding he continueth fiill King ovjer thofe Subje^Sy 
and they are fiill bound unto him by their Bond of AUegiance^ 
rvherefoe'uer he, and they he : But there cannot be a King of 
Land without Subjects;; for that were but Imperiur^ in 
helluasy and Rex fyjubditifunt Relativa. 

'J*he Argument of Sir Francis Bacon Solicitor-General^ in thi 
Cafe of the- Poftnati, in the Exchequer Chamber^ before thi 
Lord Chancellor^ and all the Judges of England. Re- 
fulcitatio, Second Party p. 5 a, 5^. 

1"^ O maintain our Aflertion (that it fufficeth to Natu- 
. , raiization^ that there be one King^ and that the Party 
be natus ad fidem Regis) I will ufe three Kinds of 

The firft is, that Allegiance cannot be applied to the Law 
or Kingdom^ but to thePerfon of the King ; becaufi the AUe^ 
giance of the Subje& is more Urge and fpacious^ and hath a 
greater Latitude and Comprehenjion^ than the Law^ or the King- 
dom ; and therefore it c-annot he a dependency of that^ without 
the which it may of itfelf fubfifi. 

IJhe fecond Proof, which I (hall ufe, is, That thet 
Natural Body of the King hath an Operation and Influ- 
eneiSinto his Body Politick, as well as his Body Poli- 
tick hath upon his Body Natural : And therefore, that 
although his Body Politick of King of England^ and his 
Boi^y Politick of King of Scotland^ be feveral and di- 
ftind ; yet.neverthelefs his Natural Perfbn, which is one, 
hath an Operation upon both, and createth a Privity be- 
tween them*. 



Ix A^P P E N D r X. 

And the third Proof is, The binding Text of five 
feveral Statutes. 

For the firft of thefe, I (hall make it manifeft, that 
the Allegiance is of a greater Extent and Dimenfion, 
than Laws or Kingdom, and cannot confift by the Laws 
meerly ; becaufe it began before Laws, it continueth af- 
ter Laws, and it is in Vigour where Laws are fufpend- 
ed, and have not their Force. 

That it is more ancient than Law, appeareth by that, 
which was fpoken in the Beginning by Way of In- 
ducement, where I did endeavour to demonftrate, that 
the original Age of Kingdoms was govern*d by Natu- 
ral Equity ; that Kings were more ancient, than Law- 
givers ; that the firft Submiffions were fimple, and up- 
on Confidence to the Perfon of Kings ; and that the Al- 
legiance of Subje&s to Hereditary Monarchy^ can no more 
be faid to connft by Laws, than the Obedience of Children 
to Parents. 

That Allegiance continueth after Laws, I will only 
put the Cafe, which was remember'd by two great 
Judges in a great Aflembly, the one of them now with 
God, vjhkh was; That if a King of Enghnd Jhould be 
ezpuls^d his Kingdom , and fome particular Subje&s Jhould 
follow him in Flight or Exile in Foreign Parts^ and any of 
them there /hould confpire his Death ; that upon his Recovery 
of his Kingdom^ fuch a SubjeSf mighty by the Law of Eng- 
land, be proceeded with^ for Treafon committed and perpe^ 
trated^ at what Time he had no Kingdom^ and in Place where 
the Law did not bind. 

That Allegiance is in Force, where the Power of 
Law hath a Ceflation, appeareth notably in Time of 
Wars ; for Jilent Leges inter Arma. And yet the Sove- 
reignty and Imperial Power of the King, is fa far 
from being then extinguifhed , as contrary wife it is 
raifed, and made more abfolute ; for then he may pro- 
ceed by his Supreme Authority, and Martial Law, 
without obferving Formalities of the Laws of his King- 
dom. Thus far Sir Francis Bacon. 

Thefe Paflages fhew, that it was the declared Opi- 
nion (and it appears not to have been contradiSed) of a 
Lord Chancellor, two Judges, and a Solicitor-General, 
after Lord Chancellor, That Allegiance was due to a 
King difpofifeiled; That Treafon might be committed 




agalnfl: him, and was puniftiable by the Law of Rng 
land after his Reftauration. In the Cafe propofed, it can- 
not be doubted, but that the precedent Revolutions were 
in View, in all which, when one King was driven out^ 
another took PofiTeffion. 

It will be objedied, that in the Cafe propofed, Alle- 
giance is faid to be due to the King expulfed (not by 
all, but only) by the particular Subje^s^ who follow him in 

■srrTo this the Anfwer may be^ That thefe great Law- 
yers, by affirming, that Allegiance is due to ih^ King 
ezpulfeJ^ by the Subje&s who follow him., feem to have 
taught plainly, .that it was due to him by all the Sub- 
je6ts : They affirm'd it of fome V articular s., of whom 
they thought it could not be deny'd ; and it feem'd fu- 
perfluous to add, that the Obligation was the fame on 
all the Subjedts ; becaufe that follow'd evidently, as it 
appears to do from the Paffages cited, and from the Rea- 
fons and Refolutions, on which that Cafe of the Po/?- 
nati was determined. 

I. The Inftance of Allegiance due to a King expuls*d 
is brought to prove, that Allegiance is due to the King's 
Perfon, not to the Law, or Crown, or Kingdom ; and 
fuppofing it due by all the Subjects to a King ezpuls'd, 
the Proof is evident ; But if Allegiance is due by all 
the Subjeds in the Kingdom to the King who polTefles 
it, then this Inftance difproves the Afifertion it is 
brought to prove : For if the King expuls'd^ by lofing 
the Kingdom, lofes the Allegiance of all the Subjefts 
in it ; it follows, that Allegiance was not due to the 
King's Perfbn, but to the Crown or Kingdom, or that 
it was due (a) more by reafon of the Kings Crown (that is (a) CokeV 
of his Politique Capacity) than by reafon of the Perfon of the ji^^'"' 
Kin?., which damnable and damned Opinion., faith the ^}^^"'^ . 
Lord Coke., was indented by the spencers. 

a. Sir F. Bacon affirms, that Allegiance was due be- 
fore Laws, continueth when they eeafe by Expulfion, 
and is in Vigour when they are fufpended by War : 
But the Duty of Allegiance in the firft and laft Cafe, 
muft be extended to all the Subje6ts, therefore in the 
fecond ; and his Reafon proves it ; for if Allegiance 
depends not on the Law, it is equally due by all the 

q Sub- 

Ixii Jl'p'p'i N h I X. 

Subjefls, when the taw^ is fufpended, when it ceafes, 
and before it had Being, 
ft) Coke, ?• (^) Ltgeance and Obedience Is an Incident injeparable 

^ ^ •P-'i' fQ g^^fy Subjeii ; ^ — it joins together the Sovereign and all 
(0 Ibid, his Sub^Sis quafi uno Ligamine. (c) Whofoever are born 
under one "Natural Ligeance and Obedience^ owe it by the Law 
(,d)Lord'El- of Nat-ure to one Sovereign : \d) There is but one King and 
/ Tou' Sovereign^ to whoni this Faith and Allegiance is due by all his 
SubjeBs : That, the Natural Subjedts of England m^y 
owe Allegiance to two Kings, that are Enemies, fome 
to one, others to the other, is a raonftrous Affertion, 
unknown to all Laws and Lawyers. 
(0 Coke, . 4. In this Cafe it being agreed,, (e) That the Ligeance 
ibid. p. 12, ^^ p^j^fj of the Subject is due unto ike King by the Law 
of Nature^ part of the Law^ (?/" England; this Inference 
was drawn, That it cannot be alter d ; and becaufe it 
was unalterable^ it was not due by the Law and Conjiitution 
of Man : But if Ligeance alway deferts the Unhap- 
py, and enrolls under S^iccefs, the Law immutable 
changes with the Wind, and is more imperfe6t than hu*^ 
mane Law, which never deprives any Man of his Right, 
becaufe he is difpoffefs'd unjuftly. 
(f) Ibid. 5. It was affirm'd, (f) That the King holdeth the King^ 

^' '°* dom c/ England by Birthright inherent^ by Defcent from the 

Blood Royal^ whereupon Succejfion doth attend : And there- 
fore it is ufually faid^ to the King^ his HeirSj and Succep 
fhrs^ wherein Heirs is firji namd^ and Succejfors is atten^ 
(?) Ibid, dant upon Heirs ; and again it is concluded, (g) That 
^' ^^' our Ligeance is due unto our Natural Liege Sovereign, de- 

fcended of the Blood Royal of this Realm ; and again it ma> 
mfeftly appeareth^ that to him the Ligeance or faith of the 
SubjeB is Proprium quarto modo, omni, foli, fen> 
per. ^ 

(h) Ibid. ^' (h) It was refolved^ that it was due to the Natural Per/on of the King (which is ever accompanied with the 

Politick Capacity^ and the Politick Capacity as it were appro- 
priated to the Natural Capacity) and is not due to the Po^ 
litick Capacity only : Hence the Inference feems natural, 
that wherever the Perfon is, there is the Natural^ and 
there the Politick Capacity appropriated to it. 

7. It was determin'd, that the Ligeance of Natural 

(0 P. 7, p. Subjeds (i) is not circumJcriFd within any Place^ but is 

to be paid in all 'Places whatfoever ; and the Reafon given 


A P P E N D I X. kill 

is, that Ligeance is a Quality of^ the Mrndy not confined 
within any Place. He that is abjur'd the Realm^ amittit 
Regnum, fed non regem ; amittit patriam, fed non pa- 
trem ; for notvcithftanding the Abjuration^ he oweth the Kins; "* 

his Ligeance^ and he remaineth within the Kings Prote&iori ; 
for the King may pardon, and refiore him to his Country 
again. But when a Subject is abjur'd, and in a Fo- 
reign Country, what Subjedion can he aftually pay, 
what Protection actually receive, efpecially in Time of 
War ? The King in many Cafes cannot protect him, 
or any other Subject, by the Sword; yet his Ligeance 
continues ; v*?herefore when it is faid, that the King's 
Fower and Protection draweth Ligeance^ this cannot be un- 
derftood of adual Protedion, (which is often impoffible 
both in Foreign and in Civil War) but of the King's 
Obligation to jiroted, as he has Power : For thus hath 
Coke out of 5^f «e explain'd that Rule, which the {k) Do- W Defence, 
dor feems to underftand of adual Protedion. (/) Lige- (//coke, 
ance is the mutual Bond and Obligation between the King ^^'^^- ^ 5- 
and hbs Suhje<?is.^ whereby his Subjects are caWd his Liege Sub- 
je^s ; becaufe they are bound to obey and ferue him ; and 
he is call'd their Liege Lor^ ; becaufe he Jhould maintain and 

defend them: Therefore it is truly faid., that Prote- 

dio trahit fubjedionem, & fubjedio Protedionem; 
the Maxim cited by the Dodor, which a little before 
is thus parapliras'd, Sicut fubditus regi tenetur ad Obedien- 
tiam^ ita Rex fubdito tenetur ad proteBionem \ the Obliga- 
tion without doubt is mutual ; but a Queftion is made, 
whether it is conditional, concerning which we have 
no Controverfy. 

8. Lafdy^ (m) Treafon by the Common and Statute Cw) Bacon, 
Law may be committed by the Subjeds of England in ' * ' ^■'^* 
Foreign Parts : But it feems a manifeft Repugnancy, 
that by the fame Law a Subjed following a King expufs'd^ 
may be lawfully punilh'd, for paying his Allegiance to 
him, as he may be, if it is due by Law to the Poflef- 
for ; and for breaking it, as he may be alfo, if the 
King expuls'd recover his Kingdom. And from thefe Pre- 
mifes we may draw this Conclufion; that the Legal 
Allegiance of all Natural Subjeds is due to one So- 
vereign ; and that where it is due by one Subjed, it is 
due by every one. 


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GEorgii Bulli S Theologtai Profeiioris Si Presbyteri Anglican!, Opera omnia, 
quibusduo pra;ciput Catboiicx' fidei Anicul', de S Trinitaie & Juftificatione, 
orthodoxi!, perlpicuc, ac iolidc, explanantur, illaftrantur, cootiraianiuf ; 
nunc demuiTi in onum Votumen rolledta, ac muho coriediils qyam antfe, ma cum 
generalibus Indicibus Edna. Qnibus jam acceflic ejufdem TraAaius h^idenus incdi- 
lus, de Primitiva ^ Apoftolica '1 radt\ione dogmatis dc; ]efu Cbrilli Divinitatc contra 
Danielem Zuicke'.um, ejufque nupcios in Anglia Scdiatores ; fubr.cxa ir.fupcr pliiribus 
lingalorum Librorum capi'.tbus prclixa qaandtque annoKU Joannis Erneiti Grabe, 
cujos etiam Prxfacio huic Volumini elt piajir.illa. 

Septuaginia Inierpictum quem ex antiquiffioao MS. codice Alexandrine accurate 
dtfcripiUK). Er ope aliotum exemplariuro, ac priicorum Scriptorum, prxleriim vero 
Hexaplaris Editionis Origeniar.a; emendaium aique lupplementum, additis fjepe Alte- 
xifcorum & Obeloium figni?) lumma cura edidit Joannes Erntftus Grabe, S. T. P. 
Fol. & Octavo. 

The Hereditary Right of the Crown of England affcrted ; the Hiftory of the SuCr 
ceflion fince the Conqueit clear'd ; and ihe true Engli/}} Conltiiution vindicated frotu 
the Mifrcpreicntaiions of Di. Higdens Fietvand Defence. 

An Expolition on the 39 Articles of the Cbuich of England. By Bifhop Beveridge. 
O C J-ylVO and DVODEC I M O. 

PRivate Thouphrs on Religion, digeited inio Twelve Articles; with Praftical Refo- 
lutions formd thereupon : Written in bis younger Yeais, for the fettling of bi( 
Principles, and Condudl of his Life. The Scvenib Edition, illuflrated and adoro'd 
wiih Sculptures. 

Private Thoughts upon a Cbriftian Life ; or necefTary Directions for its Beginning 
and Progrefs upon Earth, in order to us final Ferfediion in the Beatitick Vilion. Fart. II. 
Written in his riper Years, and prii.ted ficm his Ofiginal Maoufciipis. TheTbiid 
Edition, illnftrated and adorn'd with Sculptuies. 

The great Neceffiiy and Advantage of Pub ick Prayer, and frequent Communion. 
Dtfjgo'd to revive Primitive Piety. With Meditations, Ejaculations, and Prayers, be- 
fore, at, and after the Sacrament. The Fourro Edition ; to be bad boch in a large 
and fraall Cbaradler. 

One hundred and Twenty eight Sermons,and other Dlfcour fts, en fever alSuhj eels ^ 1 Vol. vij^. 
Vol. I. Chiiit's Prelence with bis Miniliers in general. The Manner ot 0;dination 
in the Church of England. Salva:ion in the Church only under fuch a Miniftry. Tbe 
true Notion of religious Worlhip. A Foim of Sound Words to be u(ed by Minifters. 
Tbe Cburch eftablilh'd on a Rock Cbriltianity an holy Prieitbood. Tbe preparatory 
Duties for Holy Orders. The Efficacy of Faitb in the Miniftration of the Word. Mi- 
nifters the AmbalTadoiS of Chrift. The Saceidoial Benedidlion in tbe Name of the 
Trinity, explain'd. 

Vol.11. The Being and Attributes of God. The Love of God in Man's Salvation. 
The Merits of Chrift's Paflion. Salvation through Fear and Trembling. The Con- 
fcience void of Offence. Tbe Knowledge of Jefas Cbrift preferable to all other. The 
new Creature in Chriff ianity. The Nature and Eternity of Heaven's Joys and Heli's 
Tormints. Tbe Glories of Chrilt's Crols. The Excellency of the Soul above world- 
ly Goods. A Spiritual Life the Charaderilfick of a Coriltian. The Obligation of 
Superiors to promot* Religion. 

Vol. III. Tae Unity of Chrift with God the Father. The Incarnation of Cbrift. 
Chrilt the only Saviour. Chrift tbe fole Author of Grace and Truth. Chrift the Sa- 
viour of all that come to him. Chrilt the only Mediator. All things to be asked in 
ibe Name of Chrift. Chrift, as Man, is the Head over all things. Chiift is our Loid, 
and Maiter. The BlefTed Eliaie of thofe who belii;ve in Chnlt. Adniiflton into the 
Church of Chrilt by Baptifm, necefTary to Salvation. Coming to Cbuit the only 
Means of Salvation. Abiding in Chrift the only Means of univeif«l HappiiiCiS. Bear- 
ing much Fruit, theCharadteriltick of Chrift's Dilcip'es. 

Vol. 1 V. The Uiefulnefs of Fafting Tne SufS>:i^ncy of Grace. Fiith the Govern- 
ing Principle of a CbriftianLile. Faith in Gad and Cn'iit a Sovereign R-'inrdy againit 
all Troubles. Faith tbe Principle of Love and Joy. Chnlt the Foundation of all the 
Promifes. Gtd our Sovereign Good. Tbs prcffnt Security and faiu.e Happinefs of 
the Saints. The Communion ot the Saints. The Chriftian P.izi. The New Crea- 
lion. Stedfaftnefs to the eftablilh'd Chuich recommended. . 

Vul.V. The One Thing needful, UniverralObedieiice requifite to Silvation. Tbe 
Glory of Goi the final Cauicof all things. God alone to be lerv'd. Tne Advantages 
of Publick Wcrftiip. The Duty of PuWicic Thaiskfgivit^. The Suficiency of Sci- 


pture. The Pcefercnce of Spifitaa! Food to Naiurt!. The Picference of Tbingi in- 
vifible and eternal to vifible and teniporal. Of Truft in God. The Nature and Ne- 
ceirny ofReftiiution. 

Vol. VI. Three SermonS on Good-Friday. The Myftery of our Reconciliation by 
Chrift, explain'^. Tbp Satisfadion of Chrilt, explain'd. An C-i/Zer Sermon. Chri(t'» 
Refurredbon a Proof of his Diviniiy. Chi ill's Relurredlion a Proof of uurs. Cbrifl's 
Refurredtioii the Caule of our Regeneration. Chrilt's Refurredion the Caufe of our 
Juftificacion. Chrilt's Refurredioo an OLjeifl of great Joy, An £4/?«r S-Ttnon. CbrilfJ 
Afccnfion into Heaven preparatory to ours. A Woitfon Strmon. 

Vol. VII. The Danger ot Unbelief. Faith the principal inward Purity. Faith in 
Chrift the only Means of Overcoming the World. Faith in Chrift cur Title to the 
Privilege of SonQiip. The Profeflion of oar Faith in Chrilt ougbc to be Pnblick. 
The Profefllon of our Faith in Chrift ought to be conftanr. Repentance the End of 
Chrilt's Coming into the World. Repentance a certain and the only Method of ob- 
taining Pardon. Repentance the only Method of efcaping Temporal Judgments, preach'd 
on the Anniverfary Fait for the Fire of London. Repentance tbe only Method of efca- 
ping Eternal Judgments. Repentance and Faith the two gteai Branches of tbe Evan- 
gelical CoTenant. 

Vul. VIII. Holinefs the great Defign of tbe GofpelDifpenfation. Chrift'sLife aPat«- 
tern of Holinefs to Chriftians. The Holinefs of Chiiftians ought to be conlpicuous. 
The Wifdom of being Holy. Tbe Pleafure of being holy. The Advantages of being 
Holy. The exemplary Holinefs of the Primitive Chtiltians. Chfill's Grace fuflScieni 
to make Chriftians holy. 

Vol. IX. The Nature. Extent, and Polity of "God's Kingdom on Earth. God's 
Omniprefence the beft Guard againft Sin. Perpetual Rejoicing the Duty of Chriftians. 
Univerlal Thankfgiving the Duty of Chriftians. All things to be done to the Glory of 
God. All things to be done in the Name of Chrift. The Meditation of God's Law 
the good Man's Delight. Tbe Vanity of hearing the Word of God without doing it. 
The Duty and Advantage of feeking Toings Ipiritual. The Siofulnefs and Mifchief 
of worldly Anxiety. The great Duty of loving Gad. The great Happinefs of loving 

V0I.X. TbeEafinefsofChrift'sYoke. The Chrift-an Race. Cbrift the Way, the 
Truth, and the Life. Chrift a Saviour before his Incarnation. The Prefence of Chrilt 
in the Religious Alfembly of Chtiltians. The Way of leaking God fo as to find him. 
The Way of pleating God. The Parable of the Sower. The BleiTing of Purity in 
Heart. Againft ralh Swearing, A Spinal Sermon. Obedience to Governors. 

N. B. in a fhort time will be publilh'd Two more Volumes of Sermons, with an 
Index to tbe Whole, and the Charaders by feveral Eminent Men. 

Thefaurus Theologicus, ; or a complete Syttem of Divinity, fumm'd up in brief Notes 
lAon feledt Places of the Old and New Tettament j wherein the facred Texts is re- 
duced under proper Heads, explain'd, and illuftrated with the Opinions and Authori- 
ties of the ancient FatbeiS, Councils, ^c. in 4 Volumes, OBavo. 

All thefe by the Slight Hevetend Father in God, William Beveridge, D.D. laie 
Lord Bifhop of St, Afaph. 

The Dodtrine of the Two Covenants; the Dodltine of the Two Sacraments ; and 
Death difarm'd of its S:ing, In 3 Vol. oUa-vo. By the Right Reverend Father in 
God, BX'kj'l Hopkins, D.D. late Lord Bifhop of Londonderry. Now firft publifh'd from 
his Original Manufcripts. 

Some important Points of Primitive Chriftianity, maiotain'd and defended; in feve- 
ral Sermons, and other Difcourfcs, By George Bull, D. D. late Lord Bilhop of St. Da' 
vid'i, vi:^. 

Vol. I. The NeccfTity of Works of Righteoufnefs, in order to Salvation ; tbo' the 
Reward of them is only to be cxpecfted from the Free Grace and Mercy of God, alfer- 
ted againft the Antimmians and Papifls. That the Soul of Man fublifts after Death, in 
a place of Abode provided by God for it, till the RefurreiSion ; concerning the middle 
State of Happinefs or Mifery, allotted by God to every Man prefently after Death, 
according as be has been good or bad in bis paft Life, inconfiftent with the Popilh Do- 
(Strine of Purgatory. The low and mean Condition of the BlelTed Virgin confider'd ; 
as alio the lingular Grace and Favour of God vouchfafed to her j and that Refpetft which 
is due to her from us upon that Account, wherein the Invocation of her by the Pdpiftt 
is refuted. St. Paul'i Thorn in the Flelh, the MelTenger of Sttah, fent to prevent hiS 
being Exalted above Mealure, confider'd and explain'd j with leveral PraiSical Ob- 
fervations drawn from that Subjed. A Vilitation Sermon concerning the great DifH-' 
culty and Danger of the Prieftly OlSce. The diftijrent Degrees of Blifs and Glory 
in Cbrift's heavenly Kingdom, anfwer to the different Degrees of Grace here below. 
Several Objelftions againft this Dofftrine are anfwet'd. Evetlafting Life hop'd for byr 
good Mer^ under the Old Teftament j and that tbe Conlideration of the Vanity of the, 

I* prcfens 

prefent Life, is an effedual Means to nnake us fix our Minds upon Things eternal. 
What that Wortbinefs is, and wherein it conlifts, which is rcqair'd of tbole that (hall 
be Part»ker« of the future heavenly Glory. 

Vol.11. That the Poverty of the firft Preachers of the Gofpe! was defign'd by Pro- 
videoce, to convince the World of their Sincerity ; and that even Perfons divinely In- 
fpired, and Minifters of God, did not fo wholly depend on Divine Infpiration, but that 
they made ufe alfo of the ordinary Help and Means, fuch as Reading of Books, with 
Study and Meditation on them, for iheir Afl[i(tance in the Dikbarge of their Office. 
The Exiftence of Angels prov'd from Reafon as well as Scripture ; iheir Creation by 
God ; the Fall of fome of them ; the Nature of the Holy Angels j their State and 
Condition in reference to God. The Office of the Holy Angels in reference ro good 
Men ; being appointed by God as the Minilters of bis Ipecial Providence towards the 
Faithful ; and wherein the Angelical Miniftry doth more efpecially confift. Prefcribed 
Forms of Prayer in the Publick Wordiip of God, pratftis'd from the very Beginning 
of Cbriliianity, and was not only ancient, but ufetol and neceflfary upon many Ac- 
counts. That the Dodlrine of the Recompence of Reward to be beftowed on the 
Righteous after this Life, was underftood and believed by the People of God before 
the Law was given ; and that it is lawful to ferve God with rel'pei^ to, or in hope 
of, the future, heavenly Recompence. That many may have a Form or Shew of 
Godlinefs, when they deny its Power, ard are far from the Reality and Truth of it. 
A ProfperoDS Condition in this World is a Blefling of God, wherein we not only may, 
but ought to rejoice, fince it is given us by God as a peculiar Time of Comfort and 
Rejoicing. Adverfity the proper Seafon of ferious Confideration, and fo contrived by 
the Providence of God, that it (hould be intermixt with Profperity ; and this Mixture 
of Good and Evil fo proportioned by the (ame Providence, that it obviates all Di con- 
tent and Murmuring againft God. That it is a very finful and vain thing for any Man 
fo to glory in his own Wifdom, Strength, or Wealth, as to place his Trnft and Confi* 
dence in either or all of ihem. That the religious Acknowledgment of God's Provi- 
dence, in the wife and righteous Government and Difpofal of all hutnane Affairs, 
join'd with an humble Dependence and firm Truft in him, in the Way of Obedience 
10 Him, Man's belt, and indeed only Security. 

Vol. ill. That it IS Matter of great Ufe and Concernment, much conducing to the 
Purpofes of Religion, ferJoufly to conGder the Sbortnefs and Uncertainty of Lifej and 
ibic fuch due Confideration of our (hort and uncertain Abode in this World, is the 
Gift of God, and the Effed of his Grace, which therefore ought to be fought for by 
humble and earneft Prayer. Difcourje i. The Doiftrineof the Catholick Church for 
the firft Three Ages of Chriftianiiy, concerning the Blefled Trinity, confidered ; in Op- 
pofition to Sahsllianifm, and Tritheiftn, Difc. 1. The principal Parts and Branches of 
the Paftoral Office, with Rules and Diretftions for the due Performance of each of 
ibem. Difc. 3. Concerning the Spirit of God in the Faithful, how and in what man- 
ner it doth bear Witnefs with their Spirits, that they are the Children of God j and 
what Degree of Hope or Perfuafion concerning their Adoption, this Witnefs of the Spi- 
rit doth ordinarily produce in the Faithful. Difc- 4. The Conlubftantiality and Co- 
eternity of the Son of God with the Father, afTerted j or fome few Aoimadverfions on 
a Treatife ef Mt. Gilbert derive, entiiuled, Antenicenifmus, fo far as the Author pre- 
tends to anfwer Dr.George Bull's Defence of ths Nicene Ftiith. Difc. 5. Concerning the 
firft Covenant, and the State of Man before the F«ll ; according to the Scripture, and 
the Senfe of the Primitive Dodtors of the Catholick Church. The Life of Dr. George 
Bull, late Lord Bifhop of St. David'i : With the Hiftory of thofe Controveriies m 
which he was engaged. And an AbftratS of thofe Fundamental DotS^rioes which he 
maintaio'd and defended in the Latin Tongue. By Robert Nelfon, Elq; OHavo. 

N. B. There is fome printed upon large Royal Papej, for thofe who 
are curious. 

The Theory of Sciences illuftrated ; or the Grounds and Principles of the Seven 
liberal Arts, Grammar, Logick, Rhetorick, Mufick, Aritbmatick, Geometry, Aftro- 
nomy, accurately demonftraied and reduced to Pradice. With variety of Queitions, 
Problems, and Propofitions, both delightful and profitable. By H. Curfon, Gent. 

An Epiftolary Difcourfe, proving from the Scriptures and the firft Fathers, that the 
Soul is a Principle, naturally mortal ; but immortaliz'd adually, by the Pleafure of 
God to Punifliment j or to Reward, by its Union with the Divine Baptifmal Spirit: 
Wherein is proved, that none have the Power of giving this divine, immortalizing 
Spirit, fince the Apoftles, but the Biihops. With an Hypothefis concerning Sacerdotal 
Abfolution. The Second Edition corrected. By Henry Dodwell, A. M. 

Occafional Communion, fundamentally deftrndlive of the Difcipline of the Primi- 
tive Catholick Church, and contrary 10 the Dodrine of the lateft Scriptures, con- 
csfning Church Communion, By Hsrirx DedwcU, M, Ak, 


ExffcitatioDCS dax ; Prima de /Elite Pbalaridls ; Secundade ^rate Pyihacorx Phi 
lo'bpbi. Ab Henrico Dodwello. A. M. '' 

De nupero Schilmate AoRlicano Parxnefis, ad exteros tarn reformatos quam etiam 
Ponriticios qua Jura Epifcoporum Vetera, eorundemqae h Magiftratu feculari Indepcn- 
dentia omoibus aiferenda cominendanmr. Ab Henrico Dodwello, A. M. Dublinien(i. 

The ancient Religion of the Gentiles, and Caufes of their Errors conCder'd: The 
Miihkes and Failures of the Heathen Priefts and Wile.Men, in tbeir Notions of the 
Deities, and Matters of Divine Worlhip, are exatnin'd ; with regard to their being al- 
together deftituie of Divine Revelation. With t complete Index, By the Learned and 
Jadicioas Edward Lord Herbert of Cberbury. 

The Tale of a Tub reveri'dj for the univerfal Improvement of Mankind j with a 
Cbarader of the Authur. 

The Hiftory of ChatUi V. Emperor and King of Spain, the gr«4t Hero of the Houfe 
of Aiifiria; containing the mo!t remarkable Occurrences that happen'd in the World 
lor the Space of 56 Years, all Nations being io a greater and lefs Meafure engaged in 
'he Contefls and Confufions of thofe Times ; and giving an Account, 1. How the 
Huu e of AuftrU lirlt came to the Crown of Spain^ and whence the prcfent Contelts 
between the Emperor and King of France bad their Original. 2. Of the Rebellion of 
the Commons ot S/m/n, and the true Caules and Saccefs of it. 3. Of the Wars with 
"Prance, and taking that King Prifoner. 4. Of the Sacking of l{nme. 5. Of the Re- 
formation and Wais which enfued on that account. 6. Of the Revolutions and Trou- 
bles in Denmark and Sifeden, on account of Religion. 7. Of the Affairs of England, / 
and Marriage of King P/>«Vi;i and Mary Q^een o( England. 8. Of the Wars with the 
Turl^s. 9. Of the Taking of Thu/V, and otb«r Placet of the Coaft of Africa, with the 
unfortunate Expedition of Ariieri. 10. Of the Conqueft of the vaft Kingdoms of 
Veru, and Mtxico, in America. And Uftly, Of the molt Heroick Adrion of that Em- 
peror's Life> his voluntary refigning up all his vaft Dominions, and retiring to a Mo- 
naHery. Written in Spani/h by D. F.Prudentio de Sandoval Bifliop of Pamplona, and 
Hiftoriograpber to King Philip III. ()f Spain. Made Engli/h by Captain S'olm Stevens. 

Reflexions on our common Failings. Done out of French by a Perfon of Ho- 

The Parochial Clergyman's Duty ; or an earnelt Exhortation to, i. Such as bold 
coaftant Communion with the EftabliQied Church. ^, Such as feparate from, or re- 
nounce Communion with, the Eftablilbed Church. 3. The Irreligious and Prophane, 
or fuch as negled the Duties of Religion in general. Digefted from the Works of the 
late Archbilhop of Canterbury, the prelcnt Arcbbilhop of Torl^, Bifliop Beveridge^ Bifliop 
Stiilimfieet, Dr. S her locl{, Dr. Scott, Mr. rf^a//, &c. 

An Abltrad of the molt curious and excellent Thoughts of Sieur de Montaigne's' 
Eflajs; very ufeful for improving the Mind, and foriainrg the Manners of Men, 
Done into EngUflo from the French Oi iginal. 

A Conference between the Soul and Body, concerning the prefent and future State : 
Shewing how different the general Pradice of Religion now is from that of the firlt 
Chriftiins, approved and recommended to the World, by the learned Mr. Dodwell. 
The Second Edition. To which are added, Morning and Evening Hymns, By the 
Right Reverend Dr. Kenn, Bilhop of Bath and ff^ells. 

loannis Ernefti Grabi Epiftola ad clarilTimum virum Dominum Joannem Millinm," 
S. T. P' «o'32 S. Edmundi apud Oxonienfes principalem, Ecclefiae Cantuarienfis Cano- 
nicum dignifllmum ; q' a oftenditur, Libri Judicium genuinam LXX. Inierpretum 
verfionem earn elTe, qaam MS. codex Alexandrinus exhibct: Romaoam autem Editio- 
nem, quod ad didum Librum, ab illo prorfus diverfam, atque eadem cubs Hefyciana 
cffe.' Subnexa funt Ttia Nova ^ 6. Editionis Specimina cum variit Annota- 


Solon i or Philofophy no Defence againft Love. A Tragi-Comedy. With the Mailc 
of Orpheus and Euridice. Written by Captain Martin Bladen. 

A Paraphrafc and Annotations upon all St. PauPi Epiitles. Done by fevcral eminent 
Men at Oxford; correded and improved by the late Reverend and Learned Bifliop Fell. 
The Third Edition, with Additions. 

Several Difcourfes, vi:(. of Covetonfnefs ; of Cosfeflton; of Watching and Praying j 
of Cbtiftian Liberty ; on Cbrift's Nativity ; of Purifying the Temple, on the Refur- 
rcdion j of the PolTibility of Keeping God's Laws j of Feafting ; of Moderation j of 
Supcrftition ; on the Martyrdom of King Charles I. All preached on particular Occa- 
fions, before the State in the Cathedral of St. Patricl(i and Chriji-Church, Dublin ; and 
colle'ded into one Volume, by the Right Reverend Father in God ffilliam Sheridan, 
D. D. late Lord Bifliop of Kjlmore and Ardagh, deprived. 

Chriftian Perfedion, conlifting in the Love of God ; explained in feveral Letters to 
a Lady, fife- written originally in Italian by Cardinal Petrucei ; now render'd into 
Enili/h: With an Account of the Author, ^, „ 

^■' Charader* 

Charadlers and Criiicifins upon the Ancient and Modern Oators, Poets, P*inter«; 
Muficians, Statuaries, and other Arts and Sciences ; with an Heroick Poem in Blank 
Verfe. entitulcd. The Age of Lfw J the Great j wiitten originally in French by the 
Archbifliopof Qmbray, and made Engli/h by Captain Bladen, 

Pradlical Phonography, or the new Ait of rightly Spclhng and Writing Words by 
the Sound thereof ; and of rightly Sounding and Reading Words by the Sight thereof, 
applied to the Englifh Tongue. Dcfign'd tor the Ule of the Duke of Gkucefter. By 
J.Jones, M, D. 

The Mytteries of Opium reveal'd, by Dr. John Jones, Chancelfqr of Landaff^ a 
Member of the College of Pbyficians in London, and formerly Fellow of ^Jus College 
hn Oxford; who, i. Gives an Account ot the Name, Mark, Choice, Efte(5% ^c. of 
Opium. 2. Proves all former Opinions of its Operations to be meer Chimera's. 
3. Demonftrates what its true Caule is, by which he ealily and mechanically explains 
all, even its moft myfterious Effedls. 4. Shews its noxicus Principle, and how to fe- 
parateit; thereby rendring it a fafe and noble Panacea j whereof, 5. He Ihews the 
palliative and curative Ufe. 

Advertifements from Parnajfai, written originally in Italian, by the famous Trajano 
Boccalini, newly done into Englifh, and adapted to the prcfent Times : Together with 
the Author's Political Touchttone, never b.fore tranflatcd; And an Account of his 
Life, in 3 Vo'. By Captain Martin BUden. 

Secretaria di /ipallo, or Letters from Apollo, Hiftorical and Political; diretS^'d to the 
moit eminent Princes, and Statefmen, and Politicians, in the World, as well Ancient 
as Modern. With curious Remarks on the Claflic Authors, and other Greel(_ and Latin 
Hiftoriars, in a Vol, By the famous Trajano Boccalini, now done into Englifh by 
Captain Martin Bladen- 

The Endi. 









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